INTERVIEW: ‘Armenia has refused to open their archives’: US lawyer

Kasim Ileri

WASHINGTON

An American lawyer criticized remarks of President Joe Biden calling 1915 events “genocide,” saying it was a political statement and had nothing to do with the law.

Anadolu Agency interviewed Bruce Fein, a constitutional lawyer who was the associate deputy attorney general and general counsel of the Federal Communications Commission under former President Ronald Reagan’s administration.

Bruce Fein said that among all the relevant powers in World War I, only Armenia has kept the archives secret, which he said leads to a natural inference: “What are you hiding?”

Here is the interview:

Anadolu Agency: President Biden made a statement on April 24 called the 1915 events during the Ottoman era as Armenian “genocide” for the first time. How do you read 1915 events? What is your insight on those events?

Bruce Fein: I think I would like to represent the audience that political statements don’t have any endpoint to this issue because they have no legal stand. Both the European Court of Human Rights in 2015, in a case called Perincek versus Switzerland, and I remember the European Court — one of its members is Armenia but not Turkey — made clear and echoing an earlier decision by France’s Constitutional Council that legislative and administrative bodies have no jurisdiction, they have no legal authority to pronounce guilt or innocence on the crime of genocide. That can only be done by a court of law. Under the Genocide Convention Article 9, if there’s a dispute about whether events were genocide, they are to be adjudicated before the International Court of Justice in the Hague.

That article went into effect 70 years ago in 1951. Armenia has never ever taken their claim to the International Court of Justice as prescribed by the Genocide Convention. Obviously, Turkey, like any other person, enjoys a presumption of innocence and until there’s a tribunal that decided one way or the other, the presumption of innocence prevails.

Now, if I am to look at the events of 1915, with my knowledge of the Genocide Convention, it seems to me highly dubious (that) the killings — which on both sides were very, very terrible — constituted a genocide for several reasons.

First, there is a principle of universal law that acts which were not criminal at the time they committed cannot retroactively be made criminal. The whole concept of genocide wasn’t even coined till 1943, many, many decades after 1915.

So, to retroactively apply them to events of 1915 runs against the grain of international law. During the evolution of the Genocide Convention, it was understood that a killing, a death because of a political motivation, is not a genocide. Political standing was excluded by the clear vote when it came up for discussion by the participants drafting the Genocide Convention. That is, when you have killings in result, because there’s a battle over secession, for instance.

Those are not killings that can be characterized as genocide because they’re over political disputes whether a particular group deserves independence or not. It’s not all that different from the United States Civil War. When in 1861, Southern states wanted to secede, there was a very, very bloody Civil War, hundreds of thousands died. That killings were over a political view. One wanted independence, the union said, “no, you have no authority under our Constitution.” The killings were not genocide.

And if you’re looking at what transpired in World War I, even taking the Armenian Ottomans at their own words, it clearly was not genocide.

The Armenian Ottomans, they revolted in 1915. They were citizens of the Ottoman Empire. They owed them a duty of loyalty and were seeking to revolt in order to obtain political independence from the Ottoman Empire. They wanted to secede for a political objective.

The killings that ensued were not genocide by definition. The Ottoman Armenians themselves at the Paris Peace Conference in 1919 boasted that they in 1915 joined the Entente powers as belligerence. Those were the words they used. This was by someone Mr. (Boghos) Nubar, who was a general in the Ottoman army before he committed treason.

They (Armenians) abandoned their loyalty to the Ottoman Empire through Russia and France, which were then enemies of the Ottoman Empire, Turkey, and fought as belligerents. They died as belligerents and those are not genocidal killings.

Moreover, there’s at least circumstantial evidence that substantiates that the killings were not genocide. They were not killings of innocent victims who were defenseless. Again, at the Paris Peace Conference, the Armenian Ottoman, at that time the Ottoman Empire crumbled, but the Armenian representatives stated quite clearly that Ottoman Turks died in the same proportion, millions as the Ottoman Armenians.

Compare that, for example, with the Holocaust, Jews at these extermination camps. Six million died. Well, what about the Nazis, the perpetrators? Did they die in those proportionate numbers? They didn’t die at all.

And that’s why a very, very renowned Princeton historian Bernard Lewis says it is preposterous to liken what happened to the Armenians in World War I to the Holocaust. That’s a view also echoed by former Nobel Peace Prize winner and Prime Minister of Israel Shimon Peres.

So, when you look at all of the circumstances, the statistics. The Armenian Ottomans’ own statements, I believe there’s no plausible case to argue in favor of genocide characterization of the tragedy of World War I and I believe it’s precisely for that reason that for 70 long years, Armenia has refused to take their accusation that Turkey is guilty of genocide to the International Court of Justice. As we speak today, that international court is open and Armenia could have its claim adjudicated. It doesn’t want to because it fears it would lose.

Anadolu Agency: There is a clear distinction. As you also mentioned, internal conflicts or some types of civil war and genocide, of course. Despite this fact, why do you think the Biden administration made a statement, calling it a genocide?

Bruce Fein: But remember this, politicians, they don’t read history and ulterior political motives. Do you think that Joe Biden and his staff went and read through all of the staggering amounts of archives and historical writings about this era? Of course, not.

The reason why they make decisions is they have ulterior political motives. Money that gives them campaign contribution helps get the vote out. And unfortunately for Turkey, Armenian Americans are far better organized. They’re far more wealthy than Turkish Americans. And so, all this is a political statement. It has nothing to do with the law whatsoever.

And that’s why you get these things and of course, they never end the controversy. You can’t. Because, as the European Court of Human Rights is held in the French Constitutional Council, legislative, executive bodies have no jurisdiction that adjudicates an allegation of a crime of genocide. So all it does is fester politically forever. And that’s why Armenia keeps it in the political domain forever. They don’t want it adjudicated. They fear they would lose. Politically, they’re far more armed than Turkish Americans in the political arena, and they’ve won. So why risk a loss in an actual court of law?

I’d like to point out also that the International Court of Justice has decided on previous genocide accusations. There was an accusation brought by Croatia against Serbia in 2015, accusations brought by Bosnia Herzegovina against Serbia, Montenegro, 2007. So it’s not as though genocide allegations can’t be litigated, they can and they have been litigated in the International Court of Justice and made judgments on this score. Why do the Armenians resist? Again I come back, they think they would lose.

‘Only Armenia has refused to open their archives’

Another reason that makes their case suspect is that of all the relevant powers in World War I, only Armenia has refused to open their archives. Turkey has opened its, France has done its, Germany, Russia, Great Britain, United States … Only Armenia has kept them secret. And that leads to a natural inference. What are you hiding? Why, if you believe you have such an overwhelming case, wouldn’t you open your archives to everyone and expect, why must be all sorts of incriminating evidence against Turkey. But no, they still remain closed.

Anadolu Agency: The US is based on promoting democracy, human rights and touts universal values. But despite this fact, the United States goes ahead with a certain judgment based on a domestic political agenda. Is it fair that the United States president [Biden] goes ahead against all these values and leans toward a domestic political issue?

Bruce Fein: Well, I certainly think it’s unfair and unjust and not in accord with American values. But, unfortunately, it’s not simply Turkey here that [was] singled out. It’s unfortunate that we have lost such respect.

In many ways, for the law, that we make pronouncements, again, before it’s out of trial. Oh, there’s genocide in Burma, there’s genocide in China, there’s genocide in Darfur, whatever. I mean, I’m not trying to defend genocide. It’s a terrible crime. But there’s a presumption of innocence, that’s of universal standing, that’s existed for 4,000 years. If there’s a problem, then you need to take it to a court, and the International Court of Justice is long-standing. It’s there available, it has shown itself and the cases are revolving around that terrible wars after the breakup of Yugoslavia capable of rendering decisions. It’s very quite reckless and stigmatizing to throw around this charge of genocide, make it seem as though you’re issuing a conclusion. And you don’t even have a trial.

And I also would say that what President Biden said is not universally shared throughout all the United States, to be candid, most Americans really don’t know what the issue is about whatsoever. We don’t teach history very much in the United States.

If we don’t get an International Court of Justice ruling, this is going to fester politically, forever, or it could be another 50 years. And of course, even statements by the president, they’re not binding. I mean, if the future president comes and says, “No, I don’t believe what President Biden said and I believe something different,” then you go back the other way. Same with resolutions in Congress, one doesn’t bind the next one, and they’re not court judgments. So it is easy to reverse them.

[Biden’s decision] may have an impact on Turkish American relations. That’s surely true. I also believe the fallout emboldens Armenian Americans to be more vicious, more bullying, more intimidating, more threatening to Turkish Americans, saying, well, even though the President knows that you know you deny genocide makes you complicit in the crime, you’re really hateful people and all those sorts of things, and the fallout is very devastating.

Turkish stance on 1915 events

Turkey’s position on the events of 1915 is that the deaths of Armenians in eastern Anatolia took place when some sided with invading Russians and revolted against Ottoman forces. A subsequent relocation of Armenians resulted in numerous casualties.

Turkey objects to the presentation of these incidents as “genocide,” describing them as a tragedy in which both sides suffered casualties.

Ankara has repeatedly proposed the creation of a joint commission of historians from Turkey and Armenia as well as international experts to tackle the issue.

In 2014, Erdogan — Turkey’s then-prime minister — expressed his condolences to the descendants of Armenians who lost their lives in the events of 1915.

* Servet Gunerigok contributed the story.

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