South Africa: Genocide Beyond Its Legal Narratives

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Lawyer Priya Pillai speaks to New Frame about the various implications of the United States formally recognising the mass killings of Armenians by the Turkish state a century ago as genocide.

In a landmark decision, the United States House of Representatives passed a resolution on 29 October that formally recognises the Ottoman-era mass killings of Armenians a century ago as a "genocide". The unprecedented yet historic vote angered Turkey, which instantly denounced the resolution.

The symbolic vote comes amid the crumbling US-Turkey relationship, which remains strained over the Turkish operation against the formerly allied Kurds in North Syria, and Ankara's open defiance of US wishes with regards to its purchase of Russian-made defence weapons.

The Democratic-controlled House voted 405 to 11 in support of the measure, "affirming the United States record on the Armenian Genocide", a first for the US Congress, where similar measures previously have been introduced but never passed. Although the US has several times recognised an Armenian genocide through presidential proclamations and House resolutions, it is the first time a chamber of Congress has denounced the atrocities as a matter of American foreign policy.

Turkish President Recep Tayyip Erdogan termed the vote "worthless" and the "biggest insult" to Turkish people, while Foreign Minister Mevlut Cavusoglu alleged that it was revenge for the offensive in Syria.

"Those whose projects were frustrated turn to antiquated resolutions. Circles believing that they will take revenge this way are mistaken. This shameful decision of those exploiting history in politics is null and void for our government and people," Cavusoglu tweeted.

Armenian Prime Minister Nikol Pashinyan welcomed the resolution as "a bold step towards serving truth and historical justice that also offers comfort to millions of descendants of ... Armenian Genocide survivors".

Massacres and deportations

Armenians say the killing of their people amounted to genocide, a claim recognised by about 30 countries.

The massacre and deportation of hundreds of thousands of Armenians at the hands of Ottoman Turks between 1915 and 1917 is a sensitive issue for Turkey, and it has long threatened repercussions in trade and diplomatic relations if the US recognises the genocide.

Many scholars have long agreed that the experience of the Armenians in the Ottoman Empire during World War I amounts to genocide. But Turkey has denied that designation, instead describing the massacres and deportations as general wartime catastrophes during which Muslim populations suffered and died as well. It says there was no systematic attempt to destroy the Christian Armenian people.

It is important to recognise a genocide beyond the legal implications, which may give rise to claims of responsibility against the perpetrator state, as a "matter of historical narrative", says Manilla-based lawyer and international law consultant Priya Pillai.

Pillai spoke to New Frame about the importance and implications of the US House resolution to recognise the Armenian genocide. These are excerpts from the interview:

New Frame: How significant is this US House resolution to recognise the Armenian killings as genocide?

Pillai: Very significant. It is the culmination of many years of advocacy around this issue within the US as well as in other countries. The vote was passed by 405 to 11 votes in the US House of Representatives.

While this is recognition by the US House of Representatives, it is unclear whether it will be followed by a similar resolution in the US Senate, which would be needed for it to become part of official US policy. (Republican Senator Lindsey Graham later blocked the resolution in the Senate, saying lawmakers should not "sugarcoat history or try to rewrite it".)

New Frame: What are the legal implications of recognising the Armenian genocide?

Pillai: The passage of H.Res.296 means that there is recognition of the Armenian genocide by US legislators. The resolution commemorates the Armenian Genocide, and rejects denial of the genocide, and encourages public education about the event.

New Frame: What are some key details of the Armenian massacre that would qualify it as genocide under the genocide conventions?

Pillai: The Genocide Convention of 1948 defines genocide in Article 2 as, "genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group."

Key components of this definition are the intent to destroy the group and the acts that are committed in pursuit of this intention.

In the case of the Armenian genocide, there is extensive documentation of the fact that at least 300 000 to 1.5 million people were killed. There were massacres as well as the forcible movement of vast populations, leading to starvation, disease and death. By most accounts, these acts were perpetrated by the officials of the Ottoman Empire as part of a state policy, alongside ordinary civilians. This leads to the inference of a state policy of extermination of the group.

In fact, Raphael Lemkin, the originator of the term "genocide", was compelled to understand and conceptualise the term based in part on the atrocities committed against the Armenians.

New Frame: Why do you think there's such a problem, and such a resistance, to recognising the genocide by, for example, Turkey, Israel and the US? And how does denial harm the cause for justice and repatriation?

Pillai: In general, there is resistance of any state to recognition of a genocide that may have been committed in its past, as legally it can give rise to claims of responsibility against the state. Beyond the legal implications, it is also a matter of historical narrative.

In this case, Turkey has denied that genocide was committed, and in fact has laws that enable the prosecution of those that advocate for the recognition of the Armenian genocide. The crime of "insulting Turkishness" in its penal code has been used for the prosecution of those who have advocated for the recognition of the Armenian genocide by Turkey.

Its response to the vote of the US House of Representatives has been to condemn the passage of the resolution, calling it slander against the country, and to summon the US ambassador.

New Frame: What are the chief sources we have that prove a systematic genocide, and how reliable are the sources?

Pillai: This is always a complex question, but there are a variety of sources that are used to prove genocide. In most cases, these include not just facts relating to the acts that were committed but also to the intention behind the acts, and that these were part of a concerted plan to destroy a community.

Proving intention can be difficult, but can be inferred from sources including government documents, plans that may have been drawn up, orders issued by government officials, as well as eye-witness accounts, by victims and others involved. In the case of the Armenian genocide, there are extensive accounts of the genocide, including by foreign diplomats, journalists, historians and others who have made a compelling case for the recognition of the crime of genocide.

New Frame: What lessons can be learned from the study of the Armenian genocide. Are there conditions that can be identified, that predict possible genocide?

Pillai: The Armenian genocide took place before the conceptualisation of the crime of "genocide", which was only formally included as part of treaty law in 1948, in the aftermath of the Second World War. However, lessons from this event formed a key part of the deliberations in the formulation of the genocide convention, so in that sense, many of the lessons have been reflected in the text of an international treaty.

Predictions for genocide, however, are not strictly evident from the treaty itself, but are in fact rooted in other rights, the erosion of which should all be alarm bells in the run-up to any potential genocide. Substantial and constant erosion of minority rights, escalation of hate speech, lack of protection by the state are a few of the factors that may cumulatively lead to sounding the alarm of a genocide in the making.

New Frame: Is there a need to ratify the international genocide convention?

Pillai: Yes, although there is widespread ratification already - 152 states are signatories to the convention. What is more important is vigilance and prevention, as well as states taking their obligations to prevent and protect seriously.

What must also be pointed out is that the convention is not the only legal basis for action. Given the gravity of the crime, there is also recognition of the prohibition of genocide as a jus cogen norm, or something that is so important that the international community has the obligation to ensure "never again" on this basis itself.

Priya Pillai is an expert in international justice, human rights and transitional justice. She has worked at the International Federation of Red Cross and Red Crescent Societies on legal issues in the humanitarian sphere, at the United Nations' International Criminal Tribunal for the Former Yugoslavia on trials in the aftermath of the Balkans conflict, and with various organisations such as Amnesty International on the implementation of international law.

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