A Question Left Unanswered - The Causes and Consequences of the Great Powers’ Failure to Punish the Perpetrators of the Armenian Genocide

Author: Juliet Davis
Do Not Replicate without the Author’s Consent
A Question Left Unanswered: The Causes and Consequences of the Great Powers’
Failure to Punish the Perpetrators of the Armenian Genocide1
If a man is killed in Paris, it is a murder; the throats of fifty thousand people are cut in the
East, and it is a question.
Victor Hugo2
The hour of justice,...the hour of institutions empowered to judge, of states within which
institutions are consolidated, of Universal Law..., and of citizens equal before the law...is
the hour of the Western World.
Emmanuel Levinas, "The Other, Utopia and Justice"3
[I]t may safely be predicted that the question of retribution for the deportations and
massacres will be an element of venomous trouble in the life of each of the countries
concerned.
Admiral John de Robeck, British High Commissioner in Istanbul4
I Introduction
"Civilisation," Robert Jackson claimed in his opening address at Nuremberg on 21
November 1945, "asks whether law is so laggard as to be utterly helpless to deal with
crimes of this magnitude by criminals of this order of importance."5
Since Nuremberg, a
1
There remains significant political and academic controversy regarding the labelling of the events of
1915-1917 as a "genocide". As such, the decision whether or not to use this term is highly charged. It
is the author's view that these events retrospectively fall within the definition of "genocide" in article
3 of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 November 1948.
Further, it is clear from his writings that the creator of the term "genocide", Raphael Lemkin,
considered the Armenian massacres of 1915-17 to be one of the foremost examples of the term. As
such, the author has deliberately chosen to call these events the "Armenian Genocide".
2
Victor Hugo quoted in Vahakn N. Dadrian, “Genocide as a Problem of National and International
Law: The World War I Armenian Case and Its Contemporary Legal Ramifications,” Yale Journal of
International Law, 14, no. 2 ( 1989): 223.
3
Cited in Shoshana Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth Century
(Boston: Harvard University Press, 2002), 1.
4
Admiral John de Robeck cited in Dadrian, "Genocide as a Problem of National and International
Law," 286.
5
Robert Jackson, Opening Address for the United States of America by Hon. Robert H. Jackson at the
Trial of War Criminals at Nuremberg, Full Text Presented by the Washington Post (Washington D.C.:
1

weight of expectation has been placed on the power of the juridical process to heal
societies torn apart by brutality and conflict. Indeed, "the promised exercise of legal
justice...has become civilization's most appropriate and most essential, most ultimately
meaningful response to the violence that wounds it".6
However, the political and
cultural contingencies of international criminal law have served to enervate its healing
nature. Russia and China's recent decision to veto a Security Council resolution
referring Syria's "widespread violations of human rights and international
humanitarian law"7
to the International Criminal Court has been met with frustration
and condemnation by the international legal community. This failure to legally react to
the commission of international crimes has raised questions as to the consequences of
allowing justice to be overwhelmed by geo-political considerations, notions of state
sovereignty, and the lack of a strong and united stance in favour of prosecutions.
Such questions have historical precedents. Almost a century ago, the justice
system, both domestic and international, proved itself to be utterly unable to adequately
punish the Turkish perpetrators of a campaign of massacre and deportation which
resulted in the deaths of over a million Armenians. This paper will examine the
motivations behind the international and domestic attempts to bring the perpetrators
of the Armenian Genocide to justice; consider reasons why these attempts failed to
generate any meaningful results and demonstrate the long-lasting consequences of
these ill-fated attempts. Ultimately, the examination of this historical episode is
intended to shed light on obstacles to the prosecution of crimes against humanity and
The Washington Post, 1946(?), 54.
6
Felman, The Juridical Unconsciousness, 3.
7
United Nations Security Council, Draft Resolution S/2014/348, May 22, 2014,
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/s_pv_7180.pdf.
2

consider the repercussions of failures of justice. By doing so, it is hoped to derive
lessons for the international community with respect to the current crisis in Syria.
II The Situation in Syria
There is little doubt within much of the international community that the violent
excesses of the Syrian government, pro-government militia and rebel groups constitute
war crimes and crimes against humanity. Indeed, many observers have labelled the
reported instances of torture and execution of detainees, indiscriminate aerial
bombardments, and widespread use of chemical weapons, as the very crimes that the
International Criminal Court was created to combat.8
However, Syria's refusal to bind
itself to the Rome Statute, together with Russia and China's recent vetos in the Security
Council, have forestalled any investigation by the International Criminal Court for the
foreseeable future. Russia and China's vetos have been justified on the basis of national
interests as Russia is a key ally of the Assad government and China is a stalwart
defender of state sovereignty against international interference.9
However, the Security
Council's refusal to subject Syria's crimes to the scrutiny of the international legal
system has caused many, including the U.N. deputy secretary general Jan Eliasson, to
question the ability of the Security Council and United Nations to "provide some
accountability for the ongoing crimes".10
Other solutions to the crisis include the formation of a special ad hoc tribunal,
domestic prosecutions or prosecutions by individual states through the nexus of
8
The New York Times, "China and Russia Block Referral of Syria to Court," May 22, 2014.
9
Time, "Evidence of War Crimes in Syria But No Prospect of Trials," January 22, 2014.
10
Jan Eliasson quoted in The New York Times, "China and Russia Block Referral of Syria to Court," May
22, 2014.
3

universal jurisdiction.11
However, these solutions involve a number of diplomatic and
legal challenges. Both domestic prosecutions and the formation of an ad hoc tribunal
require the commitment of the affected nation, which Syria is certainly not in the
position to provide at the moment, while prosecutions by way of an exercise of
universal jurisdiction place significant diplomatic and financial pressure on the legal
system of an individual foreign state.
Such complexities prompt a re-examination of the past in the hope of
determining how historical legal proceedings were able to "put the forces of
international law, its precepts, its prohibitions and, most of all, its sanctions, on the side
of peace".12
Many would seek to derive lessons from episodes which have been judged
by the weight of history to be largely successful, such as the trial of the German war
criminals at Nuremberg in the wake of the Second World War. However, it may be
argued that the Nuremberg proceedings can be sharply distinguished from the
circumstances surrounding the abortive attempts at Syrian prosecutions due to the
marked national self-interest and seemingly united front displayed by the Allied powers
in their prosecution of their defeated German foe. Instead, it is asserted that a more
useful comparison lies in the failed domestic and international attempts to prosecute
the Turkish perpetrators of the Armenian Genocide during the First World War. By
examining these failures, and their consequences, the international community may be
better equipped to avoid making similar mistakes with regard to the crisis in Syria.
III Background to the Genocide
11
The New York Times, "China and Russia Block Referral of Syria to Court," May 22, 2014.
12
Robert Jackson, Opening Address for the United States of America, 54.
4

In 1915, the Ottoman Ittihad ve Terakki (Committee of Union and Progress)13
initiated a
systematic campaign of forced deportations and massacres which resulted in the deaths
of over a million Armenians. These killings were the culmination of a series of bloody
pogroms against the Ottoman Armenian community (millet) which commenced under
the rule of Sultan Abdul Hamit in 1894.14
In July 1908, the "Red Sultan" was deposed in a
bloodless revolution by the Ittihadists, also known as the Young Turks, led by the
triumvirate of Talaat, Enver and Cemal Pasha.15
Initially the Ittihadists were regarded as
reformist, however their ideology of pan-Turanism, which rejected minority rights in
favour of a policy of "Ottomanization", prompted an increasingly repressive stance
against the Ottoman Empire's non-Turkish peoples. In 1909, between 15,000 and
25,000 Armenians were killed by Young Turk forces in the Adana region.16
The Ottoman
Empire's entry into the First World War on the side of the Central Powers in late 1914
has been regarded by many scholars as either an opportunistic cover, or an impetus for
further violence against the Armenian millet. Ittihadist leaders formed the Special
Organisation (Teşkilati Mahsusa),17
a secret entity aligned with the executive, which was
designed to effect a covert policy of deportation and massacre. The Armenians' forced
removal was legitimated under the Temporary Law of Deportation dated May 26, 1915
which allowed the deportation of those whom the authorities "sensed" to be guilty of
espionage or treason, or for reasons of military necessity.18
The Temporary Law of
13
Vahakn N. Dadrian and Taner Akçam, Judgment at Istanbul: The Armenian Genocide Trials (New
York: Berghahn Books, 2011), xi.
14
Donald Bloxham, The Great Game of Genocide: Imperialism, Nationalism, and the Destruction of the
Ottoman Armenians (Oxford: Oxford University Press, 2005), 51.
15
Dadrian, "Genocide as a Problem of National and International Law," 252.
16
Major Doughty Wylie cited in Peter Balakian, The Burning Tigris: The Armenian Genocide and
America’s Response (New York: Harper Collins, 2004), 154; Henry Morgenthau Sr., Ambassador
Morgenthau's Story (Ann Arbor, Michigan: Gomidas Institute, 2000), 9.
17
Dadrian and Akçam, Judgment at Istanbul, xi.
18
5

Expropriation and Confiscation of September 1915 allowed the wholesale seizure of the
deportees' assets. Although these pieces of legislation provided for the re-settlement
and compensation of the deported populace, the vast majority of the deportees did not
survive their forced removal. According to Henry Morgenthau, the United States'
Ambassador to Turkey during this period:
The real purpose of the deportation was robbery and destruction; it really
represented a new method of massacre. When the Turkish authorities gave the
orders for these deportations, they were merely giving the death warrant to a
whole race...19
The killing of the deportees was mainly performed by gangs of chetes, convicted
criminals who had been released from prison under a special amnesty declared by the
Ministries of Justice and the Interior.20
Often, the methods of killing were extremely
violent and were accompanied by wholesale sexual violence against women and young
girls. In addition to the targeted massacre of deportees, many others died of starvation,
thirst and exhaustion on their way to or upon their arrival in the Deir ez-Zor desert in
Syria. It is estimated that over one million people died as a result of the Ittihadists'
destructive state policy.
IV Proposed Methods of Punishment
The Ittihadists' actions were condemned by the great European powers soon after the
violence began. On May 24, 1915, Britain, France and Russia issued a joint declaration in
which they stated:
19
Morgenthau, Ambassador Morgenthau's Story, 309.
20
6

For about a month the Kurd and Turkish population of Armenia has been
massacring Armenians with the connivance and often assistance of Ottoman
authorities....In view of these new crimes of Turkey against humanity and
civilization the Allied governments announce publicly to the Sublime Porte that
they will hold personally responsible for these crimes all members of the
Ottoman government and those of their agents who are implicated in such
massacres.21
Throughout the First World War, eye-witness reports by U.S. foreign service officers,
missionaries and other foreign civilians provided a well-publicised account of the
Armenian people's suffering. Indeed, the New York Times published 145 articles on the
massacres in 1915 alone.22
An outpouring of popular support for the Armenians was
manifested in numerous relief projects as well as calls for retribution against their
Turkish persecutors. For the Entente, the "liberation of the peoples who now lie
beneath the murderous tyranny of the Turks" became an important war aim.23
Turkey's eventual signing of an armistice at Mundros on October 30, 1918
compelled the Entente powers to consider how to deal with their defeated Turkish
enemies. On January 18, 1919, Admiral Calthorpe, the British High Commissioner,
informed the Turkish Foreign Minister that: “His Majesty’s Government are resolved to
have proper punishment inflicted on those responsible for the Armenian massacres”.24
However what was to constitute "proper punishment" remained an issue of dispute
among the Entente powers which was greatly influenced by competing territorial,
cultural and political concerns.
21
Vahakn N. Dadrian, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to
Anatolia to the Caucasus (New York; Oxford : Berghahn Books, 2003), 216-217.
22
Balakian, The Burning Tigris, n.p.
23
Taner Akçam, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility
(New York: Metropolitan Books, 2006), 214.
24
7

Certainly, the Entente nations were keen to exact the traditional penalty for
military defeat, that is the acquisition of Ottoman territory. The Ottoman Empire had
long been considered the "Sick Man of Europe" and deliberations regarding the
economic and political partition of Anatolia had taken place among the great European
powers prior to the beginning of World War One. On September 25, 1913, the French
Ambassador to Berlin wrote that talks between the Great Powers would resolve
“collectively and finally [the] future shares and present spheres of influence in Asia
Minor”.25
On March 16, 1914, the Ambassador recorded his view that the aim of a
number of bilateral agreements between Germany, France, Britain and Italy "was not
merely…to divide up Asia Minor in an economic sense, but also to partition it
politically”.26
These arrangements gained greater potency during the First World War, with a
number of secret agreements being forged by the Entente powers to determine their
postbellum share of Ottoman territory. These territorial ambitions were however
undermined by the newly-formed Bolshevik administration's decision on November 22,
1917 to publish the Sykes-Picot Accord and Treaty of Istanbul. In these accords, Britain,
France and Tsarist Russia had secretly pledged to dissect the Ottoman Empire to allow a
Russian claim over the Dardanelles and the Straits of the Bosporus; French rule of
Syrian coastal regions and British occupation of Lower Mesopotamia.27
The Bolsheviks'
revelation of these secret imperial designs forced a diplomatic retreat from the accords,
causing British Prime Minister Lloyd George to proclaim on January 5, 1918 that Britain
was “not fighting to deprive Turkey of its capital or of rich and famous lands such as
25
Akçam, A Shameful Act, 209.
26
27
Ibid.
8

Thrace and Asia Minor where the majority of people are from the Turkish race”.28
Consequently, overtly imperialist language regarding the division of the
Ottoman Empire was replaced by calls for collective punishment of the Turks for their
wrongful actions against the Armenians. In a telegraph to the Paris Peace Conference on
April 3, 1919, British Deputy High Commissioner Webb argued: “To punish all persons
guilty of Armenian atrocities would necessitate wholesale execution of Turks and I
therefore suggest punishment should rather take the form of, nationally,
dismemberment of [the] late Turkish Empire...”.29
President Woodrow Wilson
confirmed these sentiments by stating at the Paris Peace Conference: “I have studied the
question of the Turks in Europe and every year confirmed my opinion that they ought to
be cleared out”.30
Ultimately, the proliferation of competing territorial claims among the
Great Powers and their allies prevented the collective punishment of Turks by way of
territorial divestment. As such, the Entente nations were compelled to consider
individual forms of punishment.
Many influential figures among the Entente powers were convinced of the need
to legally call the Ittihadist leaders to account for their role in orchestrating the
massacres. Viscount James Bryce, who produced the authoritative documentary record
of the massacres for the British Government, advocated summary execution, claiming
that: "Enver and Talaat the two chief villains, ought to be hanged if they can be
caught".31
Despite Viscount Bryce's strongly-held view, a consensus formed around the
prosecution of the Young Turks under international law, in line with the proposed
28
Cited in Ibid., 210.
29
Dadrian, "Genocide as a Problem of National and International Law," 282-283.
30
31
James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of
the First World War (Westport, Conn: Greenwood Press, 1982), 62.
9

treatment of the German Kaiser. In 1918, the United States World Peace Foundation put
forward a list of "outlaws of civilization" deserving of "condign punishment", which
included the Ittihadist triumvirate of Talaat, Enver and Cemal Pasha.32
The Foundation's
list echoed an earlier list suggested by French international law expert Tancrède Martel
in 1917.33
In 1919, the Entente's schemes for the individual punishment of the Young
Turks were given a formal structure at the Paris Peace Conference by the establishment
of a Commission on the Responsibility of the Authors of the War and the Enforcement of
Penalties. This Commission was constituted by elite experts of international law from
each of the Great and lesser Entente powers and was charged with determining the
means of punishing key figures belonging to the defeated Central Powers. Despite the
Entente's declaration at the commencement of the war that they would hold "personally
responsible....all members of the Ottoman government and those of their agents who are
implicated in [the] massacres", there was no legal precedent for an international crime
of this nature. Previous international law instruments, such as the Hague Conventions,
only dealt with impermissible actions between belligerents, not internal actions against
a state's own people. Such domestic enterprises were traditionally regarded as shielded
by the doctrine of state sovereignty, and thus not the appropriate subject of
international intervention.
However, Greek international lawyer Nicholas Politis encouraged the
Commission to embrace a new category of crimes against "what might be called the law
of humanity or the moral law"34
This legal phrasing was based on the preamble to the
32
Dadrian, "Genocide as a Problem of National and International Law," 283, fn 220.
33
Ibid.
34
Willis, Prologue to Nuremberg, 157.
10

Fourth Hague Convention of 1907 which states that the contracting parties agree that
“the inhabitants and the belligerents remain under the protection and the rule of the
principles of the law of nations, as they result from the usages established among
civilized peoples, from the laws of humanity, and the dictates of the public conscience.”35
Politis claimed that the newly articulated "crime against humanity" would encompass
the massacre of the Armenians for although "[t]echnically these acts did not come
within the provisions of the penal code...they constitute grave offences [against] the law
of humanity".36
The United States delegation expressed their reservations regarding the
Commission's willingness to try sovereign nations' acts as "crimes against humanity".
The American members argued that:
"[T]here were two classes of responsibilities, those of a legal nature and those of a
moral nature, that legal offences were justiciable and liable to trial and
punishment by appropriate tribunals, but that moral offences, however iniquitous
and infamous and however terrible in their results, were beyond the reach of
judicial procedure, and subject only to moral sanctions."37
Robert Lansing, the U.S. Secretary of State, and James Brown Scott, an American
international law expert, were both opposed to the ex post facto nature of the proposed
crimes, which could arguably also vary "with time, place and circumstance, and
according...to the conscience of the individual judge".38
35
Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations
concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 available from
http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/1d1726425f6955aec12564
1e0038bfd6.
36
37
"Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties," The
American Journal of International Law, 14, no. 1/2 (Jan-April 1920): 128.
38
Ibid., 144.
11

The Commission presented its report, together with the United States'
objections, to the Peace Conference on March 29, 1919. Following further negotiations,
the Conference accepted an amended proposal which maintained the Entente's goal of
prosecuting the Young Turks, but amended the proposed offence from "crimes against
humanity" to "crimes against the law of war" and shifted the jurisdiction from an
international court to a military tribunal.39
The final Conference decision was
manifested in article 230 of the Treaty of Sèvres, dated August 10, 1920 between the
victorious powers and the Ottoman Empire, which declared that:
The Turkish Government undertakes to hand over the Allied Powers the persons
whose surrender may be required by the latter as being responsible for the
massacres committed during the continuance of the state of war on territory
which formed part of the Turkish Empire on August 1, 1914. The Allied powers
reserve to themselves the right to designate the tribunal which shall try the
persons so accused, and the Turkish Government undertakes to recognise such
tribunal. In the event of the League of Nations having created in sufficient time a
tribunal competent to deal with the said massacres, the Allied Powers reserve to
themselves the right to bring the accused persons mentioned above before such
tribunal, and the Turkish Government undertakes equally to recognise such
tribunal.40
Despite the creation of a legislative framework, international attempts to prosecute the
perpetrators of the Armenian Genocide were ultimately unsuccessful. The two year
delay between the signing of the armistice at Mudros in October 1918 and the final
agreement of peace terms in the Treaty of Sèvres saw a significant shift in the political
realities of both the Turkish and Allied camps. During this period, Turkish political
institutions were transformed by the emergence of the Nationalist party, based in
39
40
Article 230, Treaty of Peace with defeated Ottoman Turkey done 10 August 1920, Gt. Brit. Treaty
Series No 11 (1920).
12

Ankara and led by Mustafa Kemal, which rejected the notion of “recognizing a kind of
right of jurisdiction on the part of a foreign government over the acts of a Turkish
subject in the interior of Turkey herself”.41
While in early 1919, Turkish authorities had
succumbed to Entente pressure to arrest and detain Turkish officials accused of
engineering the massacres, the rising popularity of Turkish nationalism stymied Allied
attempts to detain those responsible. Turkish officers refused to hand over suspects for
trial by an international tribunal on the grounds that such a surrender contravened the
promise of Ottoman sovereignty provided for in the armistice at Mudros.42
Furthermore, mass protests against the detentions led to release of forty-one prisoners
by Grand Vizier Damat Ferit Pasha so to avoid a rush on the prison reminiscent of the
storming of the Bastille.43
Bolshevik victories in the ongoing Russian Civil War, together with a
destabilising climate of paramilitary violence in Europe during the interwar period, also
compelled the Great Powers to consider the strategic advantages of a strong, unified
Turkey in the region.44
The Entente's united front crumbled as the French and Italian
governments became increasingly reluctant to implement the unpopular prosecutions
process due to their desire for concessions from the newly-powerful Nationalists.45
Both
nations sabotaged British efforts to strengthen the authority of the pro-prosecutions
government and Sultan in Istanbul, with the Italians providing significant military
41
Speech delivered by Mustafa Kemal in 1927 cited in Dadrian, "Genocide as a Problem of National
and International Law," 315.
42
Alan Kramer, “The First Wave of International War Crimes Trials: Istanbul and Leipzig,” European
Review, 14, no. 4 (2006): 444.
43
Dadrian and Akçam, Judgment at Istanbul, 79.
44
John Horne and Robert Gerwarth, "Paramilitarism in Europe after the Great War," in War in Peace:
Paramilitary Violence in Europe after the Great War eds. John Horne and Robert Gerwarth (Oxford
Scholarship Online, 2013), 1.
45
13

assistance to the Nationalists.46
This lack of unity among the Allies fatally undermined
the international attempts to bring the perpetrators of the Armenian genocide to justice.
Amidst the ashes of the failed Allied enterprise, the British government
continued its pursuit of Turkish war criminals, claiming on February 25, 1919 that “it
was undesirable to leave it to the Turkish authorities to try and punish such offenders
as could not be competently tried by Military Courts”.47
Two distinct categories of
crimes were proposed to be tried by the British Military Courts, the first dealt with the
mistreatment of prisoners of war and the second concerned "deportations and
massacres".48
The French objected to the proposed British trials of Turkish officers on
the grounds that the unofficial nature of Britain's occupation of Istanbul meant the
Ottoman sovereignty was still in force and accordingly their consent was required for
any foreign punishment of Turkish subjects.49
However, British Law officers maintained
that under the Treaty of Sèvres, British Military Courts could operate in all of the
Ottoman occupied zones on the basis that "[t]he matter is not within the sphere of
municipal law, but is governed by the customs of war and rules of international law".50
Such courts were also regarded as capable of prosecuting Ottoman subjects in non-
occupied zones, provided that the trials were consented to by the Turkish government.51
Furthermore, the British detention of alleged offenders on Malta was regarded as legally
unobjectionable on the basis that "detention is an act of State”.52
46
47
Ibid., 285; Willis, Prologue to Nuremberg, 158.
48
49
50
Response of Law Officers signed by Gordon Hewart and Ernest M Pollock, cited in Dadrian,
"Genocide as a Problem of National and International Law," 283.
51
Response of Law Officers signed by Gordon Hewart and Ernest M Pollock, cited in Dadrian,
"Genocide as a Problem of National and International Law," 283.
52
Ibid.
14

The British government sought to explain its perseverance as stemming from a
humanitarian agenda, rather than any political imperatives. It was claimed that Britain's
continued drive to prosecute arose from feelings of guilt regarding its role in the
overturning of the Treaty of San Stefano in 1878 which resulted in the return of the
now-decimated Armenian provinces from Russian to Ottoman control.53
According to
Prime Minister Lloyd George:
This country is indebted to Armenia. For we, above all, obstructed Armenia’s
liberation from the Turk’s tyranny by the Russians. Had we not done this, all this
terrible suffering since would not have happened.54
This humanitarian rhetoric was closely aligned with the British populace's ongoing
concern for "suffering Armenia", as well as their continued outrage over the Turkish
treatment of British prisoners of war during the conflict.55
However the prosecution of
Turkish war criminals also held strategic benefits for Britain due to the Foreign Office's
concerns that Turkish nationalism could incite revolution among the British Empire's
Arab subjects.56
Consequently, the British government sought to employ the war crimes
trials as an instrument of political control.57
The transfer of prisoners arrested by
Ottoman authorities under the auspices of the proposed international trial process,
together with British military arrests during mid-1919 and 1920, resulted in the
detention of 120 Turkish citizens on Malta by December 1920.58
Although many of the
Malta detainees were charged with the massacre of Armenians, the British also used
their power of arrest as a political weapon, deporting those accused of being
53
Akçam, A Shameful Act, 233-234.
54
David Lloyd George cited in Akçam, A Shameful Act, 235.
55
56
Ibid.
57
Ibid.
58
15

"Nationalist undesirables" or "having troubled public security".59
The British use of
political arrests became increasingly brazen over time, culminating in the arrests and
deportations of many anti-British political and intellectual figures during the occupation
of Constantinople on March 16, 1920.60
As retribution, the Nationalists took
approximately thirty British officers and citizens hostage, including the brother of the
commander-in-chief of India, Lord Henry Rawlinson.61
Coupled with a military assault
by the Nationalists against the British occupation of Turkey, the hostage situation
caused Britain to revise its war crimes policy. In July 1920, Winston Churchill
persuaded the British Cabinet to free the "less guilty and less hostile of the prisoners"
immediately in order to avoid having to liberate "in the first instance the most guilty
and the most hostile in exchange for British officers and men captured by the
Nationalist forces".62
On March 16, 1921, British Foreign Minister Curzon and Turkish
foreign minister Bekir Sami reached an agreement to release all the Turks on Malta,
except those accused of taking part in the massacres or violating the laws and customs
of war, in exchange for all of the British hostages held by the Nationalists.63
Whilst both
sides released some of their designated prisoners, the negotiated exchange ultimately
broke down as the Nationalists' power increased.
The structural and evidential difficulties inherent in trying the accused war
criminals led to further British concessions. In their final recommendation to Cabinet in
January 1921, the British law officers conceded that their case against those accused of
the Armenian massacres had "fatal flaws" as "it seems more than probable that the
59
Ibid.
60
Ibid.
61
Ibid.
62
"Position of Turkish Political Prisoners Interned at Malta: Memorandum by the Secretary of State
for War," 19 July 1920 cited in Willis, Prologue to Nuremberg, 160.
63
16

great majority of those who could appear a witnesses against the accused are dead or
have been irretrievably dispersed".64
Furthermore, the Turkish government refused to
provide the British with any documentary evidence which may have aided the
investigation. The British urge to prosecute was further dampened by the need to draft
unprecedented laws and rules of evidence and establish bodies to prosecute, defend and
judge the accused without the backing of France or Italy.65
The escape on September 6,
1921 of three of the four individuals regarded by the British as most "gravely
implicated" in the massacres, put paid to British prosecutorial ambitions.66
The
anticipated failure of the prosecutions, together with the “the staunch belief among
Members [of Parliament is] that one British prisoner is worth a shipload of Turks”67
,
saw an "all for all" exchange take place on Malta on November 1, 1921.68
Ultimately, the
Allied war crimes project was fatally undermined by the Entente's lack of coordination
and commitment, fundamental changes in Turkish national politics and the British
government's cynical use of its arrest power to further its political aims, which
disavowed its supposedly humanitarian intentions.
As international attempts to bring the Ittihadist leaders to justice floundered, a
series of military courts-martial were established by the post-war Ottoman government.
In the wake of the armistice, the Turkish authorities were justifiably concerned that
Allied notions of collective punishment would manifest themselves in the
dismemberment of the Ottoman Empire. As such, both the post-war government in
Istanbul and the emerging Nationalist movement in Ankara, initially supported national
64
65
Ibid.
66
Ibid.
67
Foreign Minister Curzon cited in Dadrian, "Genocide as a Problem of National and International
Law," 289.
68
17

trials of the Ittihadist leaders as a means of placing the blame for the massacres on
“those three missing people: [Talaat], Enver and Cemal, who had fled to Germany in
October 1918" rather than "the innocent Turkish nation".69
By doing so, it was hoped to
mollify the victorious powers into mitigating the terms of the impending peace treaty.
Additionally the affixing of legal responsibility on Turkey's wartime leaders was
intended to provide some catharsis for a nation undergoing the difficult consequences
of a devastating military defeat.70
Initially, it was intended that certain wartime cabinet ministers would be tried
for misconduct under the civil law jurisdiction of the Ottoman High Court, as this was
the conventional means by which Ottoman ministers' actions were examined under the
Constitution.71
However, this process was stymied by pro-Ittihadist factions within the
Parliament, resulting in the Sultan's formal order on March 8, 1919 to establish an
Extraordinary Courts-Martial, which ran from mid 1919 until 1922.72
The Extraordinary
Courts-Martial was constituted by separate courts-martial installed in six different
regions. The courts-martial were also divided into prosecutions of top Cabinet ministers
and Committee of Union and Progress members, mid-range and lesser officials, as well
as responsible secretaries and deputies.73
The defendants were charged under a series
of indictments with having perpetrated the crimes of “massacre"; "unlawful, personal
profiteering”; “overthrow of the government”; “rebellion”; “violation of public order”;
“conspiracy” and “murder” under the Ottoman Penal Code.74
Others who knew of the
massacres but were not directly involved were charged as accessories. The escaped
69
Akçam, A Shameful Act, 217-218.
70
Dadrian, "Genocide as a Problem of National and International Law," 312-313.
71
Vartkes Yeghiayan, The Armenian Genocide and The Trials of the Young Turks (La Verne, California:
American Armenian International College Press, 1990), xxiii.
72
Yeghiayan, The Armenian Genocide, xxiii.
73
74
18

ringleaders of the massacres, including Talaat, Enver and Cemal Pasha, were indicted in
absentia.75
The Ottoman State's use of martial law to try civilians was regarded as
technically legitimate as statutes invoking martial law during the First World War had
not yet been repealed.76
Some ministers argued that they could not be tried by a court-
martial as their crimes were associated with the implementation of the Deportation
Law and were therefore "acts of state".77
This was rejected by the courts-martial on the
grounds that the massacres were not a mere by-product of legitimate government
business but separate acts of murder.78
Many of the leaders' claims that they were
unaware of the massacres were repudiated by documentary evidence to the contrary.
Others, such as Kemal Bey, the notorious former governor of Bogazhyan who
engineered the deportation of an estimated 120,000 Armenians from his province,
relied on the defence that he was merely following orders from the Ittihadist leaders.
However the chief prosecutor successfully argued in response that although "everyone
is obligated to carry out orders from the highest officers...he must judge and weigh in
balance whether the issued order does not violate justice and the law".79
Kemal Bey was
found guilty by the court-martial and hanged in April 1919. Two other middle-level civil
servants were executed by the courts-martial and Talaat Pasha and his inner circle were
sentenced to death in absentia.80
75
76
Ibid., 93.
77
Ibid, 98.
78
Ibid.
79
Michael Bobelian, Children of Armenia: A Forgotten Genocide and the Century-Long Struggle for
Justice (New York: Simon & Schuster, 2009), 55.
80
19

The courts-martial process was intended by the Turkish authorities to deflect
claims of collective responsibility for Armenian suffering and forge a new narrative
which portrayed the Turks as victims of the Ittihadists. This approach was apparent in
the statement by post-war Grand Vizier Demat Ferit Pasha that: "Not only had
Christians been persecuted, but three million Muslims had felt the terror of the
[Committee of Union and Progress] as well".81
This was reiterated in the Key Indictment,
which accused the Ittihadist leaders of "pretend[ing] to be struggling for national
interests [when] in reality however, they were only pursuing their own personal
interests, and by creating heavy, war-related burdens, were stifling the people".82
Furthermore, the indictment emphasised the dire penalties that Turks faced for
sheltering an Armenian, in order to "illustrate why Muslims and minor officials...were
not able to prevent the monstrosities from taking place".83
The Turks also sought to use the trials to defend themselves against the religious
and cultural prejudices held by members of the Entente. As Mustafa Kemal complained:
“Our old allies, such as Germany and Bulgaria, were defeated alongside us and to the
same extent, but their existence and right to life has not been placed in placed in peril”.84
Throughout the war and the postbellum negotiations, the Allies employed rhetoric
which clearly expressed their disdain for the Ottomans, with Prime Minister Lloyd
George describing the Turks as “a human cancer, a creeping agony in the flesh of the
lands which they misgoverned”.85
The Entente's anti-Turkish bias was further
articulated by the Allied Council of Ten on June 17, 1919, in which it was stated that:
81
82
Yeghiayan, The Armenian Genocide, 11.
83
84
Excerpted from a letter sent by Kemal Ataturk to Sultan Vahdettin on 2 October 1920, cited in
85
20

History tells us of many Turkish successes and many Turkish defeats…Yet in all
these changes there is no single case to be found, either in Europe or Asia or Africa
in which the establishment of Turkish rule in any country has not been followed
by a diminution of material prosperity and a fall in the level of culture, not is there
any case to be found in which the withdrawal of Turkish rule has not been
followed by a growth in material prosperity and a rise in the level of culture.
Neither among the Christians nor among the Moslems…has the Turk done other
than destroy whatever he has conquered.”86
Although couched in secular language, the Entente's accusation that the Turks
perpetrated "crimes against humanity" carried with it distinctly Christian overtones.
Indeed, the first draft of the Entente's warning dated 24 May 1915 sought to condemn
the Turks for “crimes against Christianity and civilization". This phrasing, originally
proposed by Russia, was amended to "crimes against humanity" due to French and
British fears that an overt use of such "crusader" rhetoric could offend their Muslim
colonial subjects.87
Although less explicit, appeals to "humanity" were regarded as a
form of Christian rhetoric, due to having been historically employed by Christian
missionaries in advocating for issues such as abolitionism. Such language became
specifically aligned with the Armenian cause due to Viscount Bryce's prominent use of
missionary statements in his seminal report, The Treatment of the Armenians in the
Ottoman Empire 1915-1916. Thus it appeared to the Turks that the novel accusation of
"crimes against humanity" levelled against the perpetrators of the Armenian massacres
was in fact part of the anti-Turkish bias used by the European powers to advance their
territorial claims.
The Turks attempted to counter this bias within the national courts-martial by
employing language which condemned the violence against Armenians on cultural and
86
Ibid., 213.
87
21

religious terms. During the first trial of the Ittihadist leaders, the President of the
courts-martial criticised their actions on the basis that "[p]erpetration of such atrocities
is not only incompatible with Ottoman Laws and the Constitution, but is also contrary to
the dictates of our faith".88
Indeed, it was claimed that "countries within the Ottoman
Empire' which had been "thirsting for justice" had been unable to obtain restitution due
to "the gradual loosening of Islamic traditions".89
In the later trials of those accused of
organising the deportation and massacres at Yozgat, Trabzon and Beyük Dere, the
courts-martial emphasised that "the high principles of Islam and the provisions of the
Ottoman Codes are for all subjects and protect equally the honor, lives and properties of
everyone. Full implementation of this is the duty of all representatives of the state".90
Thus the Turks sought to employ culturally-specific language to contradict the Entente's
"universalist" rhetoric of crimes against humanity.
Despite their attempts to avoid the notion of collective Turkish guilt by assigning
personal blame for the massacres and depicting the Turkish people as victims of the
Ittihadists, the courts-martial came increasingly under fire from the Nationalists. The
Nationalists criticised the military verdicts as a “self-condemnation by the Government
and the Court, and a condemnation of the Turkish nation”.91
The final terms of the
Treaty of Sèvres, which called for the dismemberment of the Ottoman Empire,
confirmed the Nationalists' view that the Great Powers intended to carve up the Empire
regardless of the courts-martial and as a consequence the courts-martial were
abolished.92
A final renunciation of the Turkish courts-martial occurred on March 31,
88
89
Ibid., 23.
90
Yeghiayan, The Armenian Genocide, 156; see similar statements at 159-160 and 167.
91
92
22

1923 when an amnesty was announced for all of those convicted by the courts-martial.
This amnesty was later recognised by the Allied Powers as an attachment to the 1923
Treaty of Lausanne.93
Ultimately the national courts-martial failed as a result of Turkish
reactions to international pressures. Rather than being a grass-roots attempt to atone
for past crimes, the courts-martial were conceived as a means of avoiding externally-
imposed collective punishment by emphasising individual guilt and cultural
particularity. The failure of the Turkish courts-martial highlights the need for
perpetrator nations to be invested in the prosecutions process, both in terms of
domestic trials and by way of ad hoc tribunals.
V Ramifications of the Failure of the Trials
In retrospect, Admiral de Robeck was tragically prescient in his statement that "the
question of retribution for the deportations and massacres will be an element of
venomous trouble in the life of each of the countries concerned".94
The failure of the
international and domestic legal systems to conclusively allocate responsibility for the
Turks' genocidal acts against the Armenian people has stymied any legitimate
recognition of collective Turkish guilt or reconciliation with survivors.
The lack of an international juridical record of Turkish crimes against humanity,
coupled with the domestic renunciation of the courts-martial, have allowed the
development of an official Turkish policy of denial. Despite the evidence of a systematic
policy of elimination present in both contemporary Ittihadist documents and
international eye-witness accounts, Turkey continues to deny that the events of 1915 to
93
94
23

1917 constituted genocide or even crimes against humanity. Characterised as “the
seditious agents of the imperialist Great Powers, continually conspiring against the
state”,95
the deportation of Ottoman Armenians has been justified by Turkish authorities
and scholars on the grounds that it was intended to prevent the Armenians from
rebelling against Turkish rule and defecting to the Russian army.96
Other denialist
arguments seek to refute the destruction’s intentionality, characterising the massacres
as a consequence of war-time chaos and emphasising the fatalities incurred by Turkish
Muslims during the same period.97
This policy of suppression and denial remains an
integral element of Turkish foreign policy which has not only served to poison its
relations with the Armenian nation and diaspora, but also stymie its attempts to join the
European political community.
In addition, the international community's failure to prosecute the Young Turks'
crimes against humanity, together with its acquiescence as to their denial, created a
culture of perceived impunity from punishment. Indeed, a mere two decades after the
collapse of the Allied and Turkish attempts at justice, Adolf Hitler would justify his
invasion of Poland on the grounds that "Who after all is today speaking of the
destruction of the Armenians?".98
An appropriate judicial response to the Armenian
Genocide may have prevented future atrocities due to an understanding that such
actions would not be tolerated by the international community. Instead, the collapse of
95
Taner Akçam, The Young Turks’ Crime against Humanity (Princeton, N.J.: Princeton University Press,
2012), xii.
96
For example Şerif Mardin, Jön Türkler ve Siyasi Fikirleri (Istanbul: İletişim Publications, 1983), and
14, Yusuf Hikmet Bayur, Türk İnkilabi Tarihi, vol. 3, part 3 (Ankara: Türk Tarih Kurumu, 1983), 35
discussed in Akçam, The Young Turks’ Crime against Humanity, xi; Balakian, Burning Tigris 382.
97
Robert Melson, "Recent Developments in the Study of the Armenian Genocide," Holocaust and
Genocide Studies 27, no. 2 (Fall 2013): 314.
98
John Shamsey, "Focus on International Terrorism: Comment: 80 Years Too Late: The International
Criminal Court and the 20th Century's First Genocide," Journal of Transnational Law & Policy, 11, no.
2 (Spring 2002): 372.
24

Allied and British interest in bringing the Ittihadist leaders to justice publicised the
Great Powers' willingness to turn a blind eye in situations where it was to their political
advantage.99
The juridical failure to administer justice on behalf of the Genocide's victims also
resulted in a campaign of Armenian vigilantism that commenced in the post-war period
and was revived in the 1970s. "Operation Nemesis" was established by the radical wing
of the Dasnak party, a major Armenian political organisation, for the purpose of
assassinating the architects of the Armenian massacres.100
Many Ittihadist leaders
whom the courts-martial had sentenced to death in absentia but not actually punished
were hunted down and shot by Armenian assassins in the early 1920s: Talaat Pasha on
March 15, 1921; Cemal Azmi and Dr Bahaeddin Șakir on April 17, 1922; and Cemal
Pasha on July 21, 1922.101
More than 70 years later, in 1975, the Armenian Secret Army
for the Liberation of Armenia (ASALA) was founded for the purpose of "compel[ling] the
Turkish Government to acknowledge publicly its responsibility for the deaths of 1.5
million Armenians in 1915, pay reparations and cede territory for an Armenian
homeland."102
Thirty-four Turkish diplomats were assassinated by ASALA between
1975 and 1982.103
These extra-judicial measures, which attacked not only the
perpetrators of the genocide but also government representatives, indicate how the
legal system's failure to adequately prosecute and punish can lead to untrammelled acts
of retributive justice.
99
Ibid., 373.
100
Balakian, Burning Tigris, 345.
101
Dadrian and Akçam, Judgment in Istanbul, 196.
102
U.S. Department of State, Patterns of Global Terrorism (Appendix B), 1996 cited in David L. Phillips,
Diplomatic History: The 2009 Protocol on The Establishment of Diplomatic Relations Between the
Republic of Armenia and the Republic of Turkey and the 2009 Protocol on the Development of Bilateral
Relations between the Republic of Turkey and the Republic of Armenia (New York: ISHR, 2012): 3.
103
Ibid.
25

VI Lessons For The Future
In the wake of China and Russia's veto of Syria's referral to the International Criminal
Court, the international community is forced to consider its next steps in dealing with
the Syrian violators of international humanitarian law. Despite the many decades that
have passed, it is argued that many important lessons may be derived from an
examination of the international and domestic attempts to prosecute the architects of
the forced deportation and massacres of Armenians during the First World War. These
legal processes were ultimately disempowered due to political and cultural imperatives,
an excessive regard for state sovereignty and the lack of a strong and united stance in
favour of prosecutions. The failure of international and domestic authorities to bring the
Ittihadist leaders to justice has resulted in the suppression of the memory of the
massacres, which has been strengthened by a Turkish state policy of denial. Ultimately
this culture of impunity has served to spur on both vigilante justice and further crimes
against humanity. As such, it is imperative that the international community stifles its
political self-interest and works together to recognise and prosecute the crimes against
humanity perpetrated in Syria. For, as was indeed recognised during the failed vote for
the referral of Syria to the International Criminal Court, "nothing is worse than silence.
For silence means acquiescence, compromise and complicity".104
Only by taking active
steps will the international community prove that the law is neither laggard nor
helpless in dealing with crimes against humanity.
104
Mr Araud (French Member) quoted in U.N. Security Council, 7182th Meeting, "Resolution
S/2014/348" (S/PV.7180), 22 May 2014.
26

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30

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