Aporia of human rights and reparation

The Armenian–Turkish dispute is a reality that is as much part of the present day as it is of the history of the 20^th-century “extremes” described by Eric Hobsbawm or the conflict-filled history of this “dark” continent, as Mark Mazower has called it.^[1] Paradoxically, the forms taken by this contentious matter would seem to prolong a past that we would all like to see fall into place in the succession of time, thus allowing us to be fully part of the present and to build a future, to cut through, as it were, the Gordian knot that binds victim to executioner and vice versa. At a time when memory and victimhood are omnipresent, to affirm that this issue is still with us places any position one takes in a context of militant denunciations of the violence perpetrated on people in the past, under the generic term of “wrongs of the past”. ^[2] Yet here we have a genocide, a crime without statutory limits entailing the present of both Armenian and the Turkish societies. ^[3] However the aspiration to undo the tie that binds the past to the present is shared by many Armenians and Turks^[4] alike: this is attested daily by the issues under debate and the magnitude of the ongoing discussions and productions, in particular in the media and the arts, by the positions taken by individuals or civic groups. This new attitude and the fact that this aspiration can today be expressed in the international arena despite the political constraints, the fears raised and the suffering borne are an immense step forward. The assassination in 2007 of the Turkish journalist and writer of Armenian origin, Hrant Dink, demonstrated just how closely intertwined are the issues of democratization and identity in Turkey itself and the institutionalized denial of the crime perpetrated a hundred years ago, not only by the mobilization of massive popular support it sparked, but also by the condemnation of Turkey in September 2010 by the European Court of Human Rights.^[5] In rendering this judgment, the Court held the Turkish authorities responsible for failing to protect the journalist from both the threats he had received and criminal prosecution for “denigrating Turkishness”, which constitute a violation of the right to life and freedom of expression.

Some may have believed that time – the human time of the human lifespan – would do its work, would turn former deeds into history. For have not both executioners and victims largely disappeared? Yet this is not the case. Some decry political manipulation by certain institutions and organizations that enshrine the victims and which is borne along by a strong social demand that they be remembered and recognized, or by the deployment of transitional justice mechanisms. Others denounce a State-sponsored negationism, and the provocative and troubling continuity of a policy of spoliation and denial. Yet it is now obvious that the past is not past and that the imprescriptibility of the crime of genocide is more than merely a criminal matter but that it engages the present of whole societies. This continuity is characteristic of the existence of the Armenian people, a human group that existed well before the historicization of national and cultural rebirths in the 19^th century, and before the planned destruction by which they were targeted and which is still going on. Such continuity prejudges neither the stability of collective identities nor a naïve essentialism; instead it integrates individual ways of appropriation, plural identities as well as the interplay of State and private structures. It is not the destruction of the Armenian population in the Ottoman Empire that is not obliterated by time, it is the existence of a people and the variable elements by which they defined themselves and will go on to define themselves in the future by demanding the right to exist and to have existed. That a beleaguered empire, undermined by its national movements and competition from European imperialisms was taken over by an ultra-nationalist minority which considered that the survival of the State (not it’s people) required an exclusive ethnicist nationalism, that this typically early-twentieth-century ideology, with the arrival of Kemalism, took on the familiar traits of the interwar fascism and militarism, that modernity and the authoritarian shaping of an identitarian ideology were confused, none of this comes as a surprise to the historian.

Some may have thought that here too time would do its work, would transform past events into history, thus offering another opportunity to Turkish identity, to the aspirations of a people faced with converging pressure from a military junta that saw itself as the guardian of the national-state orthodoxy, from criminogenic occult organizations and from certain religious circles. But here too the facts have shown the inextricable link between past and present. Here we are back in 2004, once more listening to the “lessons on reform” proffered by Europe, admonitions coexisting in an amiable divergence with the actions of the economic and strategic circles. And here we are, in March 2014, observing Turkey’s direct hand in the concerted attack on a small Armenian town in Syrian territory. At the same time, we note the debate on Turkish identity, which revisits the Imperial Ottoman past, the cosmopolitism, the art of living together of which the Turks themselves were deprived by the revival of Kemalism in the Republic of Turkey. ^[6] The society is today torn between an official negationist historiography^[7] and cleaved memories transmitted by oral tradition, a strong reticence to look back at the past and confront the patent continuity between the hierarchy of the Committee for Union and Progress and the cadres of the Kemalist republic. ^[8]

Nevertheless, we cannot help observing the new circulation of minds and bodies between Armenians and Turks, between descendants of the executioners and those of the victims. And at last the appearance of a new “category” on the public stage: that of the descendants of those Armenian women and girls who were kidnapped, forced into marriage or given away. Might these Turks be ethnically tainted? Hybrid beings whose existence challenges the historically constructed category of enemy within that served first to justify the commission of the crime and then to cement an ethnicist brand of nationalism raised to the status of State doctrine? ^[9] But these hybrid beings also call into question a dichotomized representation – victims on the one hand, executioners on the other – that formed the mental framework of several generations of both Armenians and Turks. Finally they resolutely inscribe the genocide of the Ottoman Armenians in the present and not in the past. 1915 was a hundred years ago, but these persons are alive today in 2015: they are very much alive, and their multiple identities – religious, linguistic and cultural – cannot be denied. They exist as individuals and as a group, in the social and mental space of present time, with their past as it was committed to memory and revived.

Yet the years from 1990 to 2000 increased the stakes and the interferences, once again placing the Armenian–Turkish conflict under influence, depriving it of all autonomy: some tied it firmly to a “duty of memory” a sort of safety net of historicization and depoliticalization designed to annihilate the possible effects of any legal or political action that might result from the wave of international recognition. Others created or revived so-called representative structures designed to cut short any untimely demands. Others still oriented the litigation toward a global bilateral settlement between the Republics of Armenia and Turkey. Some, finally, waved the red flag of “Armenian land claims” to stifle a much-needed debate that would have benefited from hearing both sides, all the while calling for a “scientific” evaluation by historians. As recognition of the Armenian genocide gained ground, it became necessary to prepare for what came next, not by opening a common space for reparations and reconstruction but by neutralizing all potential objectives that resulted from the inevitable admission.^[10] As for little nations under influence, nothing surprising there either for anyone looking back on the fatal Armenian reforms launched by Russia in 1912 in the midst of the Ottoman debacle in the Balkans. But what about the convenient instrumentalization of the Armenian question in the mediatized political debates in the 2000s on Turkey’s admission to the European Union? These replays of the process of domination by an imperial liberal meta-discourse regularly include the past within the present: interpreting the Armenian question through the lens of competing Western imperial powers; clientelization policies against a background of Eastern societies rated as civilized or non-civilized, Christian or Muslim; regional geopolitical stakes in a dominated Middle East and then those of the Cold War, and now caught in the vice of radical Islamsim. Finally, what about the suffering inflicted by one hundred years of negationism and then the proposed “duty” of memory as a substitute for justice? Remember your dead (a perfectly meaningless recommendation for descendants of a process of mass extermination), be grateful to be recognized at last. The immense need of the Armenians who are victims of negationism on the part of the Turkish State and the decades-long impossibility of making their private family story coincide with the media and academic version was finally going to end. That was a considerable event, the end of being ashamed of what they were. The way “We” Armenians were seen by Others was finally going to change. The aporia of the survivor obliged to be the living proof of his own death, rightly stressed by Marc Nichanian: “Each time we talked about ourselves, we were not talking to ourselves.” ^[11] For at last to be recognized as victims is, on the contrary, to become part of the Others’ view, the symbolic third party, “civilized” humanity. Yet a victim is “already that” with respect to historical non-existence and negation. ^[12] But the memorial and traumatic approach produces its own effects. While it introduces an element of recognition into the social space as well as an individual and/or collective sense of relief, it also strengthens and freezes the identity of the group whose wounded memory is recognized, pulling it together around the dimension of victimhood. It focuses identities on the traumatic event to the detriment of plural belongings and incessant rearrangements of identities, drawing on multiple social, cultural and temporal levels.^[13] It thrusts to the fore one Armenian memory alongside plural Armenian memories: the memory of a descendant of the refugee from Bourj Hamoud cannot be assimilated to that of an Armenian from the Eastern provinces of Turkey having emigrated to Istanbul in the 1980s, or to that of an Armenian born in Yerevan or Tabriz in the 1970s. ^[14] It tends to unify plural identities, biasing the view of attachments to the empire and to the little homelands formed by one’s region and town of origin, which were the first rallying points for survivors and, from the 1920s on, for the production of writings on the lost country. It draws a new map of the spaces and objects devoted to memory, reifies commemorative rituals, selects a Pantheon and erases diverging accounts.

And yet amid the scholarly calculations and craft, a Turkish woman talks about her Armenian grandmother: might out blood have mingled? Neither untainted nor tainted, is that possible? The question arises of “the Other within us”. ^[15] The year is 2004. The exhibition “My Dear Brother” opens in January 2005 in Istanbul: the absent presence of the Armenians in the rural and urban space, in the landscape of economic life and in social events are displayed in numerous images, a kaleidoscope of a world swallowed up by collective amnesia. ^[16] 100,000 persons demonstrate in Istanbul for the funeral of Hrant Dink, chanting: “We are all Hrant Dink, we are all Armenians”. They chant in Turkish, Armenian and Kurdish. The year is 2007. The testimony of 24 grandchildren of Armenians hidden in Turkish society are published. The year is 2009. ^[17] A public lecture at Bogaziçi University on the Islamized Armenians? The year is 2013. ^[18] Micro-tales of sensibilities, collective mobilizations, trans-disciplinary approaches involving anthropologists, photographers, sociologists, activists, historians and collectors unleash silent tongues. Oral expression reclaims its rights, murmurs turn to speech, and life, flowing and elusive, circulates anew. All who spend time in Turkey today hear can hear this murmuring, this other story, told at home transmitted in the family:

“Where did your grandparents hide their gold before they were deported? We never found it.” “I know, my grandfather told me: this is your land.” “The monastery of K… oh yes, we know where that is: the ruins are over there, down the hill in the forest, I’ll show you.” “There was an Armenian village here, but everyone left.” “People say you are going to come back: you know, my family, we didn’t take anything.”

Pasts in the present that place the Turkish State and the Armenian people face to face, even within the Armenian and Turkish societies, ties are formed and projects emerge. Creation is part of individual time, and fortunately can be resilient and eager to see social ties repair themselves. Yet, in choosing to reverse direction by its present action, the Turkish State is harking back to a bygone past, by assuming a purely defensive and passive stance, denying a general historical reality. It refuses to recognize that all the democratic States that were dictatorships between the two World Wars and rested on an ideological and repressive basis of negation of human rights have distanced themselves from politically unacceptable practices without actually evoking the undeniably fatal consequences for Turkey. In promoting institutionalized negationism, the Turkish State assumes the ongoing crime of genocide, a barbarous act that engages the responsibility of the whole of humanity toward its “unconscious victims”, to quote Primo Lévi. Furthermore, in Turkey, writing or speaking about the memory and history of the Armenian genocide have never been allowed to develop in the public space. ^[19] This is an obstacle to research for historians, ^[20] to the construction of a memory constantly obliged to struggle against a state-sponsored negationism inscribed in the present, ^[21] a denial of justice in the face of the crime of genocide. ^[22] Some, in view of the founding role of the Armenian genocide in the very birth of the Turkish Republic, deem that “Turkish recognition of the existence of the genocide is tantamount to an aporia”. ^[23] It would be to suppose an exact homology between State and society, to suppose the absence of other narratives, to suppose the oneness of a Turkish identity formed in the mold of ethnicist nationalism.

The passage from confrontation to shared history implies it can be thought of in these terms, that is to say autonomously: that the victim ultimately has nothing to prove to the executioner, nothing to expect from the iconic third party on which he projects both anxious and pathetic expectations (the reification of a State justice system or group dedicated to the defense of humanity and peace). The stakes are high: individual and collective reconstruction, and the possibility of fraternization. The goal is difficult: reparations for the crime and the end of institutional negationism. The obstacles are many: fear and extremism, political manipulations in a commemorative context particularly conducive, because of its symbolic importance and its mediatization, to short-sighted instrumentalization.

Responsibility for the crime and its inclusion in the present

The question of responsibility can be defined as a mechanism including the acknowledgment and acceptance of an action or a set of acts having resulted in abnormal harm. Reparation raises the question of identifying those responsible, which can be individuals, the State or the social group. The legal approach to the notion of reparation establishes that civil or criminal law can judge crimes ascribed to individuals only if the latter can still be prosecuted and are capable of repairing the harm. If it is the act recognized as unlawful by the international community that is the target, then it is the State, as an abstract entity, that assumes responsibility for the acts committed. The responsibility of an entire group for massive violations of fundamental rights in virtue of having failed in its mission of general protection is hard to translate into legal terms and makes it necessary to imagine specific social measures. Yet, when it comes to the crime of genocide, not only are there direct actors, but also media actors: those who participated in the sequence of actions leading up to the genocide, like those who did nothing. There is thus a “sort of global responsibility on the part of a society that ‘accepts the unacceptable’, in other words accepts to deny the foundations on which it was built, such as respect for fundamental human rights”. ^[24] It is no longer a question here of designating those who are responsible or guilty but of admitting the existence of a shared past in which responsibility is accepted by the group as a whole. In the case of the Armenian genocide, collective responsibility takes a specific form in the financial and material profits from the crime and the enjoyment for the past hundred years of the land, properties, assets and businesses that resulted from the extermination of the Armenian populations and their subsequent denationalization and systematic spoliation.

The responsibility of the Turkish State in the organization, the planning at both the State and regional levels, the creation of procedures and the implementation of the extermination of the Armenians in the Ottoman Empire has been established, as has its qualification as a crime of genocide. ^[25] The State’s responsibility is also engaged in a policy of spoliation of national assets, that is to say the assets of the Armenian people in the Empire, which feature in the third section of this volume. ^[26] This destruction was accompanied by the systematic spoliation of Armenian bank assets and investments, of private assets, and of businesses, as well as the generalized looting of movable assets, private possessions, gold and silver, harvests and manufactured products, livestock and tools, of which a first approximate and partial estimation was presented at the Peace Conference in 1919. ^[27] The whole policy of the Young Turk government concerning the Ottoman Armenians, each and every one of the deeds and events that characterized the destruction of the Armenian people of the Ottoman Empire were massive violations of human rights. Each and every one of these acts was unlawful in terms not only of the internal responsibility of the Turkish State but also of its responsibility to the international community. In the post-war trials held in Constantinople in 1919–1920, under the ephemeral liberal Entente government, special Turkish courts tried government officials and members of the Young Turk party for the “collective murder of the Armenian people”, and sentenced them to death in absentia. ^[28]

If these trials recognized the nature of the crime committed, its exceptionally gravity not only with regard to Ottoman law but also to the “precepts of Islam”, to “humanity and civilization”, their limits have long been underscored, in particular when it comes to the number of sentences pronounced and the failure to carry them out, as well as the number of acquittals. ^[29] These criminal trials did not address the question of the spoliations of assets and their restitution nor their reparation. ^[30] While these trials could be placed in the context of an international justice still in its infancy and compared to the Leipzig trials, they show the obvious limits of a national justice when it comes to crimes against humanity committed by a State. ^[31] It was however the arrival in power of the Kemalists that prompted the abolition of the military courts in January 1921 and the rehabilitation of those sentenced by a series of laws and decrees leading up to a general amnesty in March 1923. Furthermore, the Treaty of Lausanne, signed by the leaders of the Kemalist party, in addition to revoking the application of the legal decisions and the reparations provided for in the Treaty of Sèvres, ended in a general amnesty for all crimes committed between 1914 and 1922. This raises the question of the legal and political continuity between the Ottoman Empire and the Republic of Turkey as well as the transferability of responsibility for unlawful acts to an international court.

The continuity of the Turkish State between the Ottoman Empire and the Republic of Turkey has been established on several occasions, and in the present context it is not surprising to see a “legal debate” arise around its relationship with responsibility for the Armenian genocide. ^[32] The allied occupation following the October signature of the Armistice of Mudros thus did not end the existence of the Ottoman State. ^[33] Nor did the emergence of the Kemalist movement on the territory of the Empire, and its gradual recognition which led it to be accepted as the legitimate representative of the Ottoman Empire in the 1923 peace talks, to the detriment of the Constantinople authorities, break this continuity. ^[34] The dismembering of the Empire, officialized by the signature of the Treaty of Lausanne in July 1923, did not make the new Turkish State a successor of the Ottoman Empire in the same way that the new States created by the dismembering were. In this sense, the recognition of the delegates of the Grand National Assembly of Turkey as representatives of the Ottoman State in the negotiations was a political and juridical recognition of continuity: these delegates negotiated for peace on behalf of the political powers that had declared war in 1914. ^[35] That Turkey was identical to the Ottoman Empire, in the sense that imperial power was now in the hands of the Turkish nation, was clearly a commonly accepted historical reality in the diplomatic talks and the treaties concluded following the Balkan wars of 1877–1878 and 1912–1913, as evinced by the interchangeable use of the terms in the same documents. ^[36] In the Treaty of Lausanne, the principle of continuity between the two States was explicitly set out, and established the sameness of Ottoman and Turkish subjects, which was recognized and approved by the government of the Turkish National Assembly as a signatory, as well as by the general acceptance on the part of the international community. ^[37] Only the question of how to apportion the Ottoman public debt between Turkey and the States resulting from the dismemberment of the Ottoman Empire, dealt with in Articles 46–57 of the Treaty of Lausanne, gave rise to a specific argument by the Turkish representatives concerning the extinction of the Ottoman State. ^[38] This argument was comparable to Russia’s and Austria’s attempts to seek relief from liability for the debts of their empires, being essentially designed to ground a global financial proposal that included the unapplied provisions of the 1878 Treaty of Berlin, ^[39] the 1881 Treaty of Thessaly, and the incomplete negotiations of the Financial Commission for Balkan Affairs of 1913^[40] in a general liquidation procedure. ^[41] The decision to submit objections concerning the allocation of the debt to arbitration resulted in the April 1925 decision by Judge Eugene Borel, who once again refuted the thesis that Turkey was a new State and ruled that it should be considered as “ continuing the personality of the Ottoman Empire”.^[42] The opportunistic policy of arguing the extinction of the Ottoman State in the debt question becomes clear in 1925–1926, in the case brought in the Netherlands by the Republic of Turkey against the German company Roselius & Company, which was demanding restitution of a deposit, arguing that the Ottoman Empire no longer existed. In order not to have to return this sum, the Turkish authorities took the position that the Republic of Turkey was the same entity as the Ottoman Empire, and they won the case. ^[43]

In truth, resumption of the legal debate over the continuity or succession between the Ottoman and the Turkish States does not enlighten us as to the reasons behind, for instance, the newly elected East German government’s official declaration of intent to recognize the RDA’s responsibility, as successor of the Reich, in the genocide of the Jewish people. The legal debate over the transmissibility of international responsibility for unlawful deeds says nothing about the position adopted by Austria, which, while refusing to acknowledge responsibility in the acts of genocide committed during the Second World War (owing to its annexation by Nazi Germany in 1938), acknowledged its status as successor to the Austrian State and accepted ex-gratia the consequences in the form of financial compensation by creating, in 2000, the Austrian Fund for Reconciliation, Peace and Cooperation. Slovenia, for its part, took unilateral responsibility for both the unlawful acts and the violations of human rights committed by the Yugoslav regime. To quote Brigitte Stern: “In showing that it disapproved of the unlawful behavior of its predecessor and that it intended to repair the consequences of its acts, the successor State wishes to make it known that a new era is beginning. There is responsibility not because one considers oneself in part to be the same, but because one considers oneself to be wholly other.” ^[44]

Responsibilities specific to the Republic of Turkey: forced denationalizations and spoliations

Political opportunism based on a logic of self-interest and wholesale appropriation of the assets and possessions of the Armenian populations was and is one of the pillars of the new Kemalist nation-state and of the negationism of the present State. The massive and systematic appropriation of national and private lands, movable and immovable assets and bank deposits was the result of a deliberate and continuous policy that also involved the systematic denationalization of genocide survivors. Depriving Armenians of their nationality was in effect designed to guarantee that these spoliations were irreversible, by making Armenians ineligible for the measures protecting minorities and preventing them from returning to Turkey to reclaim their assets. The logic of the process was put into motion in the final phase of the Lausanne Treaty negotiations.

The Treaty contains a “Declaration of Amnesty” covering all the events of the war period, which extinguished all criminal charges against the authors of abuses committed during those years. The Declaration said nothing about the genocide perpetrated by the Young Turk government, thereby making it possible to extinguish the criminal charges against those responsible for ordering or carrying out exterminations and deportations prosecuted by the Ottoman military courts. On 17 July 1923, Ismet Pacha made a declaration before the conference in which he uncoupled this declaration from what he called the “return of the emigrants” to Turkey. Return, he said, is subject to assessment by the Turkish authorities of the applicants’ good or “bad antecedents” of. This declaration formed the basis of the arguments developed by the Turkish government in the following years to justify the forced denationalization of Ottoman Armenians and refusing to recognize them as Turkish citizens. In an ideological reversal, the victims of the Young Turk genocide became pariahs, assimilated to “troublemakers”, elements of “disorder and revolution”, thus enabling the “Turkish people” to enjoy “the benefits of order and tranquility enjoyed by all independent States”, of which they had been deprived since the Treaty of Berlin.^[45] Prior to this declaration, the Kemalist government had published two decrees, the first in September 1922 authorizing the spoliation of movable and immovable assets, and the second in April 1923 authorizing the spoliation of bank accounts. The best way to prevent legal recourse to the Turkish courts and to guarantee Turkish citizens having benefited from these spoliations life-long enjoyment of their ill-gotten gains was to exclude the Armenians from the nation-state.

This new state of affairs turned the Armenian demand for reparations for 1918–1919 directed at the Young Turks’ policy of extermination and spoliation, in conjunction with the question of land, into a terrible fight: the fight against the denationalization and spoliations decreed by the Kemalist government. The international institution petitioned was the League of Nations, which from the beginning had a section designed to ensure the application of the minorities protection system in member States, among which was Kemalist Turkey. ^[46] We will not rehearse here the many failures and breaches of this system and its application; they are well known. ^[47] In order to petition the League of Nations, a member of a national minority must address their demand to the Council, arguing that their State failed to respect the minorities protection clauses. The position of the Kemalist government would therefore be to affirm the absence of any legal connection between the surviving Armenian populations and the Turkish State by ordering a specific consular policy consisting in an ethnic and religious discrimination between the different Ottoman nationals in the attribution of Turkish citizenship. Unlike nationals of Turkish origin, who were Muslims, and unlike the Jewish population, Armenian nationals were henceforth refused Turkish passports at all consulates of the Republic of Turkey, and thus systematically prevented from going home and reclaiming their lands and assets, or even designating a proxy. ^[48] No ideological meta-discourse about excluding a specific group, no definition of what an “ethnic Turk” might be went with this policy, unlike the famous speech by Nazi Germany before the League of Nations in October 1933 presenting their “conception” of ethnic nationalism. We will come back to this.

The Armenian refugees, now without a state and without rights, filed numerous petitions with the League of Nations denouncing the legal discrimination and the persecutions by the Kemalist government, while addressing helpless and futile pleas to the Western governments. Aside from defending their own interests, they did not intend to refer the question to the Turkish government, for fear, as it was frequently argued in the 1930s in the case of the Jewish refugees from central and Eastern Europe, of encouraging the generalization of a policy of expulsion. From a more structural standpoint, the Western powers’ abandonment of these new pariahs is revealing of a period that envisaged human rights only in the political-legal context of the imperial nation-state, thereby excluding colonized peoples and victims of dictatorships and ethno-nationalist or racist exclusion policies. ^[49] The bulk of the petitions filed with the League of Nations by representatives of communities in exile or by private parties denounced denationalizations and spoliations by the Kemalists. ^[50] In one letter written in Armenian to the League of Nations Council, in which the author apologizes for lack of proficiency in a Western language, we read:

“We do not know where to go. … There is no court for Armenians because we are not in our own country and we have no government to protect us. Furthermore, in view of out dispersal to the four corners of the world, we cannot to present ourselves personally before your courts.” ^[51]

In another letter, the author points out the exclusion from all human rights resulting from forced denationalization.

“In spite of the amnesty stipulated in the Treaty of Lausanne, the Armenians remain stripped of their assets and properties, driven out of their homes, wandering aimlessly throughout the world. And yet they are human beings.” ^[52]

The two main petitioners to the League of Nations were Léon Pachalian, on behalf of the Central Committee for Armenian Refugees in Paris, and Ohannes Essayan, on behalf of the Greek Committee for Armenian Refugees. For some ten years, they would be toyed with by the Section for Minorities made forever infamous by Albert Cohen, ^[53] which wavered in its dealings with a question that was simple enough – the exclusion and discrimination of an entire population – between technical legalism, formalist objectivism and bureaucratic cynicism. The exchanges between the members of the Section for Minorities, and their consultations with the Legal Service of the League of Nations secretariat are characteristic of a disconnect between positivistic legalism and normative legitimacy. They chose to defend a legalist orthodox position in disregard of human rights, shying away from allowing the “demands” of individuals and groups a legitimate place in an international order that subjects the individual to its internal order, overly anxious not to ruffle any official feathers. But they were just as adept at protecting themselves against any protest from the public or the media by bringing effective pressure on the network of national associations supporting the League of Nations. There is no denying that the Section’s handling of the Armenian petitions participated in legitimatizing the Kemalist dictatorship by the absence of any criticism or ethical judgment concerning the meaning of the laws in violation of human rights, by the trivialization of iniquitous laws that were not regarded as exceptional and by the absence of any awareness of the persecutions, of the ban on returning home and reclaiming one’s possessions and assets after having been the victim of a process of genocide. This does not necessarily mean they espoused an ideology of Turkish ethnic nationalism, but it was part of a process of legitimization on the part of the League of Nations by means of a legal and rational domination (in accordance with impersonal and general rules of law) and an identification with a system of socially desirable standards and values shared by cooperating State structures (repression of the dark side of the legal-political order of the imperial nation-state and of a policy based on difference).

In reality, only seven of the petitions concerning denationalizations and spoliations were submitted to a committee formed of three representatives of member States charged with validating and transmitting them to the League of Nations Council or the Permanent Court of International Justice. ^[54] An excerpt from the petition submitted by Léon Pachalian in 1925 gives the measure of the persecution and exclusion practiced by the Kemalist government from the outset:

“The Turkish authorities persist in refusing them passports and do not allow them to reclaim their belongings; at the same time, they declare the powers of attorney invalid and refuse to recognize the proxies designated by the beneficiaries and continue to sell the assets they have confiscated and to appropriate the revenues, not only in Constantinople, but also in Smyrna and the other towns of Turkey. The same fate has befallen the assets of the Armenian institutions, such as the churches, monasteries, schools, etc. … Nothing allows the Turkish authorities to regard as “abandoned assets” the possessions of Armenians who claim them in person or by proxy. It is purely arbitrary for the administration to rescind their property deeds, to refuse to recognize their powers of attorney, to seize their Bank accounts, de collect the rents from their buildings or to sell them and to appropriate the price for themselves, whereas these assets have owners or beneficiaries.” ^[55]

Following a series of long and complex procedures, these petitions were dismissed one after another. They were not filed with the Council of the League of Nations, or with the Permanent Court of International Justice, despite intervention by the foremost European experts on international law for the period between the two wars in favor of referral to the Court.^[56] The main argument rested on repeated assurances from the Turkish government of a total absence of discrimination against the Armenians, on the government’s sovereignty in matters of nationality, whereas it was defined by a convention, and on a clever modification of the legislative texts, which were amended so as to prevent recourse. The committee of the three States in charge of examining the petition from the Central Committee for Armenian Refugees, in December 1927, with total disregard for the facts, ultimately concluded that nothing in the information contained in the petition indicated that, in the determination of the acquisition or loss of Turkish nationality, the government applied a differential treatment to the detriment of the Armenians, either as individuals or as a group. ^[57]

The responsibility of the leaders of the Grand National Assembly, the founders and the senior officials of the Republic of Turkey created in October 1923,^[58] is thus bound up with the responsibility of the Young Turk government that ordered the Armenian genocide. In addition to the continuity of the State and its articulation with the transmissibility of international responsibility for the violation of jus cogens,^[59] a specific and new responsibility arose not only from its own violations but also from the legitimization of the preceding violations (rehabilitation of condemned authors of genocide, decrees concerning spoliation of survivors’ assets, forced denationalization of Armenians, institutional negationism, etc.). This specific and new responsibility concerns a massive violation of human rights that was part of the social, economic and ideological foundations of the Republic of Turkey, which paradoxically predicated its existence and legitimacy on a complete and radical break with its Ottoman past. To include this foundational stage is to include the dark zone that was present from the outset. It is to renounce the artificial dissociation between a State nationalism that guarantees freedom from Western modernizing imperialisms, on the one hand, and the violence typical of all ethnicist nationalism and the projection of one model on an entire society, on the other hand. Repression of this dark zone by the institutionalization of negationism, the continued destruction of the Armenian heritage, the ban on speaking out in public did not achieve their goal, which was the denial of the existence of the Other within. Compulsively and methodically, for dozens of years, they destroyed, confiscated, transported, changed place names, changed people’s names, obliterated traces and rewrote the past. These are the childish but tragically effective attempts of a demiurgic will and a desire for omnipotence that is doomed to failure. For the collective repression that was imposed and shared in this way could only come at the cost of a social and economic redistribution of the profits of the crime: land, movable and immovable assets, ill-gained bank accounts, posts and occupations freed from the presence of non-Turks, national independence, etc. But at the same time this secret lay slumbering, somewhere in local or family memories, in the marginal and invisible modes of transmission, in the non-written forms of expression and individual practices, in the ruins of a church or a medieval monastery, in the walls of plundered houses, ultimately, in the silence of that which is concealed but which everyone somehow knows. That which is hidden at a given moment in time is that which is most visible, for it is the secret that everyone knows without having to speak it.

The modern generations in today’s Turkey are no longer those that concluded the initial economic, social and symbolic redistribution pact. But they have inherited a putrifying corpse whose stench has become objectionable and even unbearable, and for the more pragmatic, counterproductive. In addition, voices are being raised that refuse to accept a responsibility that is not theirs, a legacy inherited from the crime and spoliation committed by the Kemalist leaders, and in which they want no part. Their indebtedness to the “father” of the Turks and the fear of being downgraded and dominated are being revived so that the present generations will not shake off their past. The main argument – the financial and material cost of reparation – is convincing in particular in economic circles. But what if Turkish society was resilient and no longer needed a father…

Reparations: a global approach

So what does it matter if the legal means of establishing the responsibility of the Turkish State before the international community by a complaint filed by a national State with the International Court of Justice, for instance, may be considered by some legal experts as improbable and justifying the affirmation that “the Turkish State can have only a moral responsibility”? ^[60] The question of justice with regard to the crime of genocide raises the problem, as we know, of the impossibility of matching the irrationality of the harm with the rationality of the reparation. The very sense of responsibility that calls for repairing the damage is not possible in the case of destroyed human lives. Furthermore, reparation supposes identifying the beneficiaries of this responsibility. Are the victims still alive or are we talking about their direct or distant heirs? As in the case of those responsible for the crime, two dimensions are involved: individual and collective. The less response there is in terms of justice, the more the collective dimension is transmitted and resonates from one generation to the next. In the Armenian case, it is patent. Absent any response from society, today’s victims bear the harm done their ascendants, which results in an even stronger collective dimension. We know that law is helpless in the face of this collective dimension.

The notion of reparation and redress must therefore be included in a global approach, one that takes into account law and politics, ethics and society, economics and culture. Each of these fields must adopt the appropriate means, simultaneously and in accordance with its own criteria: individualized means in certain cases, collective means in others, legislative measures in some cases and reliance on the initiatives of collectivities and associations in others. This is the content of the demand for the restitution of the Armenian national assets presented in this work. But neither the symbolic rhetoric of forgiveness, nor the “duty” of memory, nor historical research can replace justice for what is and will remain for generations to come an imprescriptible crime.