ICTJ Analysis on Applicability of UN Convention on Genocides pre-1951

ICTJ Analysis on Applicability of UN Convention on Genocides pre-1951

Armenian News Network / Groong
February 10, 2003


TURKISH-ARMENIAN RECONCILIATION COMMISSION (TARC) STATEMENT

The Turkish Armenian Reconciliation Commission (TARC) requested
that the International Center for Transitional Justice facilitate
an independent legal study on the applicability of the 1948
Genocide Convention to events which occurred during the early
twentieth century. On February 4, 2003, the International Center
for Transitional Justice provided an analysis on the subject. TARC
members will meet soon and resume their work for reconciliation.


* * * * *


THE APPLICABILITY OF THE UNITED NATIONS CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME OF GENOCIDE TO EVENTS WHICH OCCURRED
DURING THE EARLY TWENTIETH CENTURY

LEGAL ANALYSIS PREPARED FOR THE INTERNATIONAL CENTER FOR TRANSITIONAL
JUSTICE

This memorandum was drafted by independent legal counsel
based on a request made to the International Center for Transitional
Justice ("ICTJ"), on the basis of the Memorandum of Understanding
("MoU") entered into by The Turkish Armenian Reconciliation Commission
("TARC") on July 12, 2002 and presentations by members of TARC
on September 10, 2002, seeking an objective and independent legal
analysis regarding the applicability of the United Nations ("UN")
Convention on the Prevention and Punishment of the Crime of Genocide1
to events which occurred during the early twentieth century.2

This memorandum is a legal, not a factual or historical,
analysis. In deriving the conclusions contained in this memorandum we
have attempted to state explicitly whether our conclusion relies on
any factual assumptions. Although we have reviewed various accounts
of the relevant facts, we have not undertaken any independent factual
investigation.

We emphasize further that this memorandum addresses solely the
applicability of the Genocide Convention to the Events. It does not
purport to address the applicability to the Events of, or the rights
or responsibilities of concerned individuals or entities under,
any other rubric of international law or the laws of any nation.


I. THE GENOCIDE CONVENTION

A. The International Crime of Genocide

Article I of the Convention declares genocide to be a
crime under international law which signatories will prevent and
punish.3 Article II of the Convention provides that:

[G]enocide 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.4

This Article has been imported verbatim into the
Statutes of the International Criminal Tribunals for Rwanda and the
former Yugoslavia, as well as the new Statute of the International
Criminal Court.5

Article III clarifies that complicity in genocide and
conspiracy, direct and public incitement and attempt to commit
genocide, in addition to genocide itself, are punishable.6

B. Punishment of Genocide

Article IV of the Convention states that "[p]ersons
committing genocide ... shall be punished, whether they are
constitutionally responsible rulers, public officials or private
individuals."7 Articles V, VI and VII impose various obligations
on States party to the Convention to enact domestic measures aimed
at preventing and punishing genocide.8 Articles VIII and IX provide
mechanisms for States party to the Convention to call upon organs of
the UN to take action to prevent and suppress genocide9 and to refer
disputes concerning the "interpretation, application or fulfillment"
of the Convention to the ICJ.10

The remaining nine articles of the Convention are
essentially procedural.11


II. EXECUTIVE SUMMARY OF LEGAL CONCLUSIONS

International law generally prohibits the retroactive
application of treaties unless a different intention appears from
the treaty or is otherwise established. The Genocide Convention
contains no provision mandating its retroactive application. To the
contrary, the text of the Convention strongly suggests that it was
intended to impose prospective obligations only on the States party
to it. Therefore, no legal, financial or territorial claim arising
out of the Events could successfully be made against any individual
or state under the Convention.

The term genocide, as used in the Convention to describe the
international crime of that name, may be applied, however, to many
and various events that occurred prior to the entry into force of the
Convention. References to genocide as a historical fact are contained
in the text of the Convention and its travaux preparatoires.

As it has been developed by the International Criminal
Court (whose Statute adopts the Convention's definition of genocide),
the crime of genocide has four elements: (i) the perpetrator killed one
or more persons; (ii) such person or persons belonged to a particular
national, ethnical, racial or religious group; (iii) the perpetrator
intended to destroy, in whole or in part, that group, as such; and
(iv) the conduct took place in the context of a manifest pattern of
similar conduct directed against that group or was conduct that could
itself effect such destruction.

There are many accounts of the Events, and significant
disagreement among them on many issues of fact. Notwithstanding these
disagreements, the core facts common to all of the various accounts
of the Events we reviewed establish that three of the elements listed
above were met: (1) one or more persons were killed; (2) such persons
belonged to a particular national, ethnical, racial or religious group;
and (3) the conduct took place in the context of a manifest pattern of
similar conduct directed against that group. For purposes of assessing
whether the Events, viewed collectively, constituted genocide, the only
relevant area of disagreement is on whether the Events were perpetrated
with the intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such. While this legal memorandum is
not intended to definitively resolve particular factual disputes, we
believe that the most reasonable conclusion to draw from the various
accounts of the Events is that at least some of the perpetrators
of the Events knew that the consequence of their actions would be
the destruction, in whole or in part, of the Armenians of eastern
Anatolia, as such, or acted purposively towards this goal, and,
therefore, possessed the requisite genocidal intent. Because the other
three elements identified above have been definitively established,
the Events, viewed collectively, can thus be said to include all of
the elements of the crime of genocide as defined in the Convention,
and legal scholars as well as historians, politicians, journalists
and other people would be justified in continuing to so describe them.


LEGAL ANALYSIS


III. THE GENOCIDE CONVENTION DOES NOT BY ITS TERMS APPLY TO ACTS THAT
OCCURRED PRIOR TO JANUARY 12, 1951.

A. International law generally prohibits the retroactive
application of treaties.

Article 28 of the Vienna Convention on the Law of
Treaties provides that:

Unless a different intention appears from the treaty
or is otherwise established, its provisions do not
bind a party in relation to any act or fact which took
place or any situation which ceased to exist before
the date of the entry into force of the treaty with
respect to that party.12

The Vienna Convention on the Law of Treaties did
not itself enter into force until January 27, 1980. However, while
the convention "constitute[d] both codification and progressive
development of international law ..."13 at the time it was adopted,
"[m]ost provisions of the Vienna Convention ... are declaratory of
customary international law."14 The International Court of Justice
has noted the customary status of certain provisions of the Vienna
Convention on the Law of Treaties, including Article 62 (termination
of a treaty by a fundamental change of circumstances)15 and Article 60
(termination of a treaty due to material breach)16. U.S. courts have
applied the interpretive provisions of the convention as reflecting
customary international law (and therefore US law), despite the
fact that the United States has signed but not ratified the Vienna
Convention on the Law of Treaties, and officials of the U.S. government
have made statements to similar effect.17

The case law of the International Court of Justice
prior to the adoption of the Vienna Convention on the Law of Treaties
tends to support the contention that Article 28 codified existing
international law. In the Ambatielos case, the Court observed:

To accept [the Greek Government's] theory would mean
giving retroactive effect to Article 29 of the Treaty
of 1926, whereas Article 32 of this Treaty states
that the Treaty, which must mean all the provisions
of the Treaty, shall come into force immediately
upon ratification. Such a conclusion might have
been rebutted if there had been any special clause
or any special object necessitating retroactive
interpretation. There is no such clause or object
in the present case. It is therefore impossible to
hold that any of its provisions must be deemed to
have been in force earlier.18

The Court in the Ambatielos case recognized that the States Parties
to a treaty could provide for its retroactive application, a position
the Permanent Court of International Justice had earlier upheld.19
The analysis under the Vienna Convention of the Law of Treaties'
formulation of the rule therefore turns to whether "a different
intention appears from the treaty or is otherwise established" that
would permit the Genocide Convention to be applied to acts committed
prior to its entry into force.20

B. Neither the text nor the travaux preparatoires of the
Convention manifest an intention to apply its provisions
retroactively.

Pursuant to Article 13, the Convention entered into
force on January 12, 1951, the ninetieth day following the date
of deposit of the twentieth instrument of ratification with the UN
Secretary-General. Subsequent ratifications and accessions became
effective for the states submitting them on the ninetieth day following
the date of their deposit. As noted above, unless a contrary intention
appears, a treaty provision stating that a treaty comes into force
on a particular date "must mean all the provisions of the Treaty"
come into force on that date.21

The text of those provisions of the Convention imposing
obligations on States Parties to the Convention almost universally
obligate the States Parties to take action in the future. For example,
the States Parties "undertake" to prevent and punish the crime of
genocide,22 "undertake to enact" the necessary legislation to give
effect to the Convention's provisions,23 and agree that persons
charged with genocide "shall be tried" by competent domestic or
international tribunals24.

The travaux preparatoires of the Convention support
the contention that the negotiators understood that they were accepting
prospective, not retrospective, obligations on behalf of the States
they represented, including the "prevention of future crimes."25
One delegate described the purpose of the Convention as expressing
"the peoples' desire to punish all those who, in the future, might
be tempted to repeat the appalling crimes that had been committed."26


C. Conclusion

The Genocide Convention does not give rise to
individual criminal or state responsibility for events which occurred
during the early twentieth century or at any time prior to January
12, 1951.


IV. ALTHOUGH THE GENOCIDE CONVENTION DOES NOT GIVE RISE TO STATE OR
INDIVIDUAL LIABILITY FOR EVENTS WHICH OCCURRED PRIOR TO JANUARY
12, 1951, THE TERM "GENOCIDE", AS DEFINED IN THE CONVENTION,
MAY BE APPLIED TO DESCRIBE SUCH EVENTS.

A. Scope of this memorandum

We have been requested to provide our opinion on the
"applicability" of the Genocide Convention to the Events. It is beyond
the scope of this memorandum to investigate the extent to which the
Convention codified existing international law regarding responsibility
for genocidal acts, although we note that the International Court
of Justice has opined that, at least following its adoption, the
"principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without any
conventional obligation."27 Likewise, this memorandum does not address,
as beyond the scope of the request to us, the claim raised as early as
191528 that the Events constituted, when committed, an international
crime entailing state and individual criminal responsibility under
customary international law.

The request to consider the "applicability" of the
Convention to the Events does encompass an analysis of whether the
term "genocide", as defined in the Convention, may appropriately be
applied, (a) as a general matter, to describe events which occurred
in the early twentieth century and (b) to describe the Events.


B. Terminological applicability of the term "genocide"
to events which occurred during the early twentieth century.

It is clear, from the text of the Convention and
related documents and the travaux preparatoires, that the term genocide
may be applied to events that pre-dated the adoption of the Convention.

The drafters of the Genocide Convention used the term
"genocide" to refer to events that pre-dated the adoption of the
Convention. Although Rafael Lemkin did not coin the term "genocide"
until 1943, the text of the Convention and other writings conclusively
establish that he and the other drafters of the Convention understood
and used the word genocide to describe acts perpetrated prior to
the Convention's adoption.29 The States Parties to the Convention
recognize, in the Convention's preamble, that "at all periods of
history genocide has inflicted great losses on humanity."30

The travaux preparatoires contain numerous references
to genocide as a historical fact. The Cuban delegate stated that
"[h]istory revealed innumerable examples of genocide ..."31, while the
Egyptian delegate, in arguing against a direct link between genocide
and fascism-nazism, spoke of "instances of genocide [which] were to be
found in the far more distant past."32 The British delegate, who had
been the chief British prosecutor before the Nuremberg Tribunal, spoke
of genocide as "a crime already known in international law, of which
history had furnished many examples throughout the centuries."33 The
Argentinean delegate referred to genocide as "a crime which, although
it had always been known to exist, had only recently been defined."34

Likewise, Resolution 96(I) of the United Nations
General Assembly, which was passed unanimously and authorized the
drafting of the Convention, refers to "many instances of such crimes
of genocide" which "have occurred when racial, religious, and other
groups have been destroyed, entirely, or in part."35

It is clear from the travaux preparatoires that
the Committee negotiating the final text considered and rejected
text that would have tied the concept of genocide more closely to
the actions and motivations of the Nazis,36 on the grounds that the
Holocaust was not the first or only instance of genocide in human
history.37


C. Applicability of the term "genocide" to the Events.

1. Elements of the Crime of Genocide

While it is not seriously disputed that massacres,
deportations and other crimes were committed against Armenian citizens
of the Ottoman Empire in the early twentieth century, there is
disagreement on certain facts, including the number of people affected
and, crucially, the identity and intent of the perpetrators. 38

As a legal matter, to convict a person of the crime
of genocide one must establish certain essential elements. In
connection with the establishment of the International Criminal Court,
the Preparatory Commission for the International Criminal Court has
developed an enumeration of four such essential elements, the proof
of which would result in a determination that the events in question
constituted genocide as defined in ICC Statute (which, as noted above,
mirrors the text of the Genocide Convention).39 The four elements of
the crime of "genocide by killing" are:

(i) the perpetrator killed (or caused the
death of) one or more persons;

(ii) such person or persons belonged to
a particular national, ethnical, racial or religious
group;

(iii) the perpetrator intended to destroy,
in whole or in part, that national, ethnical, racial
or religious group, as such; and

(iv) the conduct took place in the context
of a manifest pattern of similar conduct directed
against that group or was conduct that could itself
effect such destruction.40

It is important to note that these elements were
developed in order to assess the guilt or innocence of individuals
alleged to have perpetrated genocide, a task which is well beyond the
scope of this memorandum. We have been asked to analyze whether the
Convention is applicable to the Events, collectively. This memorandum
therefore proceeds to analyze whether the Events constituted genocide
as defined in the Convention, using the elements of the crime of
genocide outlined above as an analytical tool for this purpose.


2. The Events as genocide within the meaning of
the Convention.

There are many and various accounts of the Events,
including contemporary newspaper reports,41 the memoirs of Ottoman42
and foreign43 officials and Armenian survivors,44 reports of judicial
decisions,45 correspondence and other documents contained in government
archives46 and the work of eminent historians, beginning with Arnold
Toynbee.47 The core facts common to all of the various accounts of
the facts we have reviewed in the course of preparing this memorandum
establish that, in viewing the Events collectively, at least three
of the four elements of the crime of genocide identified in Section
II.C.1 of this memorandum occurred during the Events. First, one
or more persons were killed. Second, such persons belonged to a
particular national, ethnical, racial or religious group. Finally,
the conduct took place in the context of a manifest pattern of similar
conduct directed against that group.

While the accounts we have reviewed reveal some
disagreement on the intent or motives that animated the perpetrators
of the Events, the overwhelming majority of the accounts conclude
that the Events occurred with some level of intent to effect the
destruction of the Armenian communities in the eastern provinces of
the Ottoman Empire, with many claiming that this was the specific
intent of the most senior government officials.48

The Turkish government maintains that no direct
evidence has been presented demonstrating that any Ottoman official
sought the destruction of the Ottoman Armenians.49 In light of the
frequent references to the participation of Ottoman officials in the
Events, we wish to highlight that a finding of genocide does not
as a legal matter depend on the participation of state actors. On
the contrary, the Genocide Convention confirms that perpetrators
of genocide will be punished whether they are "constitutionally
responsible rulers, public officials or private individuals."50 Thus,
it is legally appropriate to maintain that the Events constituted
genocide as defined in the Convention on the basis of a conclusion
that they were perpetrated with the intent of permanently resolving
the "Armenian question", whether or not this was the official state
policy of the Ottoman Empire.

This memorandum sets forth below certain relevant
legal considerations that bear on the resolution of the crucial issue
of genocidal intent.


3. Genocidal Intent.


On its face, the Genocide Convention's reference to
"intent" sets it apart from other crimes under international
law. The ICTR and ICTY Statutes define crimes against humanity, for
instance, by referring to acts "committed as part of a widespread
and systematic attack" against certain civilian populations.51
Although it is understood that the actor must engage purposively in
the prohibited conduct (such as killing or causing serious harm),
there is no explicit reference to the actor's intent with respect to
the widespread, systematic character of the attacks.

Genocide, by contrast, requires, at the very least,
an awareness on the part of the actor of the discriminatory nature of
his actions. While murder in the context of a widespread and systematic
attack may constitute a crime against humanity, it cannot meet the
legal definition of genocide absent evidence of the perpetrator's
intent to kill with the effect of destroying, in whole or in part,
a national, ethnic, racial or religious group as such. The scope and
level of the requisite intent, however, involve complex and evolving
issues of international law.52

The travaux preparatoires report debate on the question
of the scope and level of intent required to commit genocide.53
The adoption of the words "as such" after the enumeration of
protected groups represented a compromise designed to satisfy
both the delegates who favored inclusion of a motive and those
who thought it counterproductive. 54 Given this context, the "as
such" language is susceptible of both a general and a stricter,
motive-based, interpretation. As the delegate from Siam noted,
"there were two possible interpretations of the words 'as such';
they might mean 'in that the group is a national, racial, religious,
or political group', or 'because the group is a national, racial,
religious or political group.'"55

The judges of the ICTR and ICTY have, on several
occasions, been called upon to consider genocidal intent.56 The
decisions thus far have held that a genocide conviction requires
a showing of a particular intent. The judgments have referred
to this intent variously as specific intent, genocidal intent,
or dolus specialis.57 These terms have somewhat divergent meaning
in domestic jurisprudence and these decisions have not always been
internally consistent in their discussions of intent. Moreover, the
decisions have essentially been silent on whether a perpetrator must
consciously desire destruction of the group, or whether knowledge
that such destruction may ensue in the course of his actions will be
sufficient.58 We note further that the discussion of the appropriate
legal standard for intent is inherently fact-specific and, in light
of the factual disputes on this point, we do not express an opinion on
the standard that might be applied in any particular determination of
whether the Events constituted genocide as defined in the Convention.


D. Conclusion


The crucial issue of genocidal intent is contested,
and this legal memorandum is not intended to definitively resolve
particular factual disputes. Nonetheless, we believe that the most
reasonable conclusion to draw from the various accounts referred to
above of the Events is that, notwithstanding the efforts of large
numbers of "righteous Turks"59 who intervened on behalf of the
Armenians, at least some of the perpetrators of the Events knew
that the consequence of their actions would be the destruction,
in whole or in part, of the Armenians of eastern Anatolia, as such,
or acted purposively towards this goal, and, therefore, possessed
the requisite genocidal intent. Because the other three elements
identified above have been definitively established, the Events,
viewed collectively, can thus be said to include all of the elements
of the crime of genocide as defined in the Convention, and legal
scholars as well as historians, politicians, journalists and other
people would be justified in continuing to so describe them.

*****

FOOTNOTES:

1 Convention on the Prevention and Punishment of the Crime of Genocide,
Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277, U.N.G.A. Res. 260,
U.N. GAOR, 3rd Sess., 179th Plen. Mtg. at 174, U.N. Doc. A/810
(1948) [hereinafter "Genocide Convention" or the "Convention"].

2 We acknowledge disagreement as to the magnitude and scope
of these events, their context and intended effect, and the
identities and affiliations of their perpetrators. See, e.g.,
on the one hand, Turkish Foreign Ministry, Ten Questions, Ten
Answers: Did 1.5 Million Armenians Die During World War I?,
available at http://www.turkey.org/governmentpolitics/
documents/10Q10A.pdf/; and, on the other hand,
Armenian National Institute, Genocide FAQ, available at
http://www.armenian-genocide.org/genocidefaq.htm#HowMany. This
memorandum adopts the terminology of TARC reflected in the MoU in
referring to these events hereinafter as the "Events."

3 Genocide Convention, Art. I.

4 Id., Art. II.

5 See Statute of the International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and Other
Serious Violations of International Humanitarian Law Committed
in the Territory of Rwanda and Rwandan Citizens Responsible for
Genocide and Other Such Violations Committed in the Territory of
Neighboring States, S.C. Res. 955, U.N. SCOR, 3453d Mtg. at 3.,
U.N. Doc. S/RES/955, Annex (1994), reprinted in 33 I.L.M. 1598, 1602
(1994) [hereinafter "ICTR Statute"]; Statute of the International
Criminal Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704,
Annex, reprinted in 32 I.L.M. 1192 (1994) [hereinafter "ICTY
Statute"]; Rome Statute of the International Criminal Court,
U.N. Diplomatic Conference of Plenipotentiaries on the Establishment
of an International Criminal Court, U.N. Doc. A/CONF. 183/9
(1958), available at http://www.un.org/icc/index.htm [hereinafter
"ICC Statute"].

6 Genocide Convention, Art. III. The Convention refers in several
instances to "genocide or any of the other acts enumerated in article
III" (or words to that effect). See id., Arts. IV, V, VI, VII, VIII
and IX. For purposes of convenience, references in this memorandum
to the international crime of "genocide" are intended, unless the
context clearly indicates otherwise, to encompass genocide and the
other acts enumerated in article III of the Genocide Convention.

7 Id., Art. IV. While Article IV provides only that "persons"
(rather than states) shall be punished for committing genocide,
Article IX of the Convention provides that disputes between states
party to the Genocide Convention relating to its interpretation,
application or fulfillment, "including those relating to the
responsibility of a State for genocide," shall be submitted to the
International Court of Justice ("ICJ") at the request of any of the
parties to the dispute. Id., Art. IX. The ICJ has stated that the
reference in Article IV of the Convention to "rulers" or "public
officials" "does not exclude any form of State responsibility …
for acts of its organs" and that Article IX's reference to State
responsibility may include responsibility for the commission of
genocide, as well as responsibility for failure to fulfill the
State's obligations to prevent and punish genocide as set forth in
Articles V, VI and VII. See Int'l Ct. of Justice, Case Concerning
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary
Objections (July 11, 1996), available at
http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_19960711_frame.htm,
¶ 32.

8 Genocide Convention, Arts. V-VII.

9 Id., Art. VIII.

10 Id., Art. IX.

11 Id., Arts. X-XIX

12 Vienna Convention on the Law of Treaties, May 23, 1969,
U.N. Doc. A/CONF. 39/27 (1969), Art. 28 [hereinafter "Vienna
Convention on the Law of Treaties"].

13 International Law Commission, Reports of the Commission to
the General Assembly, [1966] 2 Y.B. Int'l L. Comm'n 169, 177,
UN Doc. A/CN.4/SER.A/1966/Add.1.

14 Marian L. Nash, Contemporary Practice of the United States relating
to International Law, 75 Am. J. Int'l L. 142, 147 (1981)(quoting
text of a letter dated Sept. 12, 1980 from Roberts B. Owen, Legal
Adviser of the U.S. Dep't of State, to Sen. Adlai E. Stevenson,
Chairman of the Subcommittee on Science, Technology and Space of
the U.S. Senate Committee on Commerce, Science and Transportation).

15 "This principle, and the conditions and exceptions to which it is
subject, have been embodied in Article 62 of the Vienna Convention
on the Law of Treaties, which may in many respects be considered
as a codification of existing customary law on the subject of
the termination of a treaty relationship on account of change
of circumstances." Int'l Ct. of Justice, Fisheries Jurisdiction
(U.K. v. Ice.), Jurisdiction of the Court, 1973 I.C.J. 3, 8
(Feb. 2).

16 "The rules laid down by the Vienna Convention on the Law of Treaties
concerning termination of a treaty relationship on account of
breach (adopted without a dissenting vote) may in many respects
be considered as a codification of existing customary law on the
subject." Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolution 276 (1970 I.C.J. 6, (Jun. 21).

17 See generally Restatement (Third), Foreign Relations Law III,
Introductory Note (1987).

18 Ambatielos Case (Greece v. U.K.), Preliminary Objections, 1952
I.C.J. 27, 40 (July 1).

19 Mavrommatis Palestine Concessions Case, 1924 PCIJ (Ser. A.) No. 2
("An essential characteristic therefore of Protocol XII [is]
that its effects extend to legal situations dating from a time
previous to its own existence. If provision were not made in the
clauses or the Protocol for the protection of the rights recognized
therein as against infringements before the coming into force
of that instrument, the Protocol would be ineffective as regards
the very period at which the rights in question are most in need
of protection.").

20 Vienna Convention on the Law of Treaties, Art. 28.

21 Ambatielos Case, supra note 18. See also Restatement (Third)
of the Foreign Relations Law § 322 (1987).

22 Genocide Convention, Art. 1.

23 Id., Art. 5.

24 Id., Art. 6.

25 Official Records of the Third Session of the General Assembly, Part
I, Sixth Committee, p. 13 (Statement of Mr. Morozov) [hereinafter
"Travaux Preparatoires"]. See also id. pp. 41- 42 (statement of
Mr. Dihigo), p.44 (statement of Mr. Kaeckenbeeck).

26 Travaux Preparatoires, p. 30 (statement of Mr. Prochazka). See
also id. p. 15 (Statement of Mr. Sundaram) ("genocide should be made
a punishable crime"), p. 78 (Statement of Mr. Maûrtua)("the concept
of genocide was new"), p. 126 (Statement of Mr. Messina)(genocide
was "a new crime under international law"), p. 127 (Statement of
Mr. Fitzmaurice)("the aim of the convention was to establish the
concept of a new crime").

27 Int'l Ct. of Justice, Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, Advisory Opinion
(May 28, 1951), 1951 I.C.J. 15, 23. The ICJ recently confirmed that
"the rights and obligations enshrined by the [Genocide] Convention
are rights and obligations erga omnes." Int'l Ct. of Justice,
Case Concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections (July 11, 1996), 1996
I.C.J. 595, 616.

28 On May 24, 1915 the Allies issued a joint declaration that "[i]n
view of these new crimes of Turkey against humanity and
civilization, the Allied governments announce publicly ... that they
will hold personally responsible ... all members of the Ottoman
government and those of their agents who are implicated in such
massacres [of Armenians]." See Matthew Lippman, The Convention
on the Prevention and Punishment of the Crime of Genocide: Fifty
Years Later, 15 Ariz. J. Int'l & Comp. L. 415, 416 (1998). The 1919
Report of the Commission on Responsibility of the Authors of the
War and on Enforcement of Penalties concluded that the Ottoman
Empire's treatment of Armenians in its territory contravened
"the established laws and customs of war and the elementary laws
of humanity," and declared that Ottoman officials accused of such
acts were liable for prosecution. Commission on the Responsibility
of the Authors of the War and on the Enforcement of Penalties,
Report Presented to the Preliminary Peace Conference, March 29,
1919, reprinted in 14 Am. J. Int'l L. 95, 112-17 (1920). The
two U.S. delegates dissented, objecting most strenuously to the
criminalization of contraventions of the laws of humanity. The
laws of humanity were, they believed, a moral rather than a legal
concept, and they felt that the prosecution of individuals before a
newly created international court for violation of the ill-defined
laws of humanity would constitute retroactive prosecution. Id.,
at 134-36.

29 Lemkin uses the term to refer, among other things, to "classical
examples of wars of extermination in which nations and groups of the
population were completely or almost completely destroyed." Examples
cited include the destruction of Carthage in 146 B.C.; the
destruction of Jerusalem by Titus in 72 A.D.; the religious wars
of Islam and the Crusades; the massacres of the Albigenses and
the Wladenses; and the siege of Magdeburg in the Thirty Years'
War. Raphael Lemkin, Axis Rule in Occupied Europe 80 at n. 3 (1944).

30 Genocide Convention, preamble.

31 Travaux Preparatoires, p. 23 (Statement of Mr. Blanco).

32 Id., p. 500. (Statement of Mr. Raafat).

33 Id., p. 40 (Statement of Sir Hartley Shawcross).

34 Id., p. 28 (Statement of Mr. Bustos Fierro).

35 G.A. Res. 96 (I), U.N. GAOR, 1st Sess., U.N. Doc. A/64/Add.1 (1946)
(emphasis added).

36 See Travaux Preparatoires, at p. 9 (Statement of Mr. Bartos), 19
(Statement of Mr. Lachs), id., p. 30 (Statement of Mr. Prochazka)
(referring to the relationship between genocide and the doctrines of
Nazism, fascism and Japanese imperialism); id., p. 501 (Statement
of Mr. Chaumont ("the convention would never have been drafted
if it had not been for the crimes committed under the Nazi and
fascist regimes").

37 See Travaux Preparatoires, p. 17 (Statement of Mr. Manini y
Ríos)("it was generally known that the nazi and fascist parties
went to extremes of genocidal crime, but ... there was no need
to include [an explicit] qualification [to that effect] in the
convention"), p. 24 (Statement of Mr. Tsien Tai), pp. 489-509,
passim. It is clear that Lemkin's awareness of and research into
the Events also had an important role in animating his advocacy
for the adoption of the Convention. See Samantha Power, "A Problem
from Hell:" America and the Age of Genocide 17-20 (2002).

38 Supra note 2.

39 Finalized Draft Text of the Elements of Crimes, Report of the
Preparatory Commission for the International Criminal Court,
Addendum, Part II, U.N. Doc. PCNICC/2000/1/Add.2 (2000), at 6
[hereinafter "Elements of Crimes"]. The analysis set forth herein
is limited to the crime of "genocide by killing." In analyzing
whether the Events constituted genocide by other means (e.g.,
"genocide by causing serious bodily or mental harm" or "genocide
by deliberately inflicting conditions of life calculated to bring
about physical destruction"), one or more additional elements
might have to be proved. Id., at 6-8.

40 Id., at 6.

41 For example, The New York Times printed numerous articles relating
to the Events, which are collected and reprinted in Richard
D. Kloian, The Armenian Genocide: News Accounts from the American
Press, 1915-1922 (3d ed. 2000).

42 See, e.g., Armenian Rebellions and Massacres: Veteran and
Eyewitness Accounts in Armenian Issue: Allegations-Facts, available
at http://www.kultur.gov.tr/portal/tarih_en.asp?belgeno=159.

43 See, e.g., Armin T. Wegner, Armin T. Wegner and the Armenians in
Anatolia, 1915: Images and Testimonies (1996); Stanley Kerr, Lions
of Marash: Personal Experiences with American Near East Relief
(1973); Henry H. Riggs, Days of Tragedy in Armenia: Personal
Experiences in Harpoot, 1915-1917 (1997); Leslie A. Davis, The
Slaughterhouse Province: An American Diplomat's Report on the
Armenian Genocide of 1915-1917 (1988), Viscount James Bryce and
Arnold J. Toynbee (eds.), The Treatment of the Armenians in the
Ottoman Empire, 1915- 1916 (2d ed. 1972). Often cited as well
are the accounts of Henry Morgenthau, the American ambassador to
Turkey from 1913 to 1916, who was reported to have frequently and
persitently intervened on behalf of the Armenians with Turkish
officials and was instrumental in bringing international attention
to the Events. See, e.g., Morgenthau Intercedes, N.Y. Times,
April 29, 1915, reprinted in Kloian, supra note 41, at 10; Laud
Our Ambassador, N.Y. Times, Sept. 8, 1915, reprinted in Kloian,
supra note 41, at 29. Morgenthau included his account of what he
termed "the murder of a nation" in his memoirs, published in 1918.
Henry Morgenthau, Ambassador Morgenthau's Story (1918), at 301
et seq.

44 See, e.g., Abraham Hartunian, Neither to Laugh nor to Weep:
A Memoir of the Armenian Genocide (2d ed. 1986); John Minassian,
Many Hills Yet to Climb: Memoirs of an Armenian Deportee (1986);
Donald E. Miller and Lorna Touryan Miller, Survivors: An Oral
History of the Armenian Genocide (1993).

45 See, e.g., Vahakn Dadrian, Genocide as a Problem of National and
International Law: The World War I Armenian Case and its
Contemporary Legal Ramifications, 14 Yale. J. Int'l L. 221,
291-315 (1989).

46 For example, documents in the U.S. archives are available in
the National Archives and Records Administration, Record Group
59, Decimal Files 867 and 860J. U.K. archives are available in
the Public Record Office, Foreign Office Records, Class 371. The
Republic of Turkey indicates that the Turkish archives, maintained
at the Prime Minstry's State Archives, are open and available
to all. See Important Questions And Answers: Is There Access
to the Ottoman Archives? Are Documents Related [to] Relocation
Concealed? in Armenian Issue: Allegations-Facts, available at
http://www.kultur.gov.tr/portal/tarih_en.asp?belgeno=253.

47 Supra note 43.

48 See e.g, Morgenthau, supra note 43; Descendants of Survivors of
the Armenian Genocide and the Holocaust, 126 Holocaust Scholars
Affirm the Incontestable Fact of the Armenian Genocide and Urge
Western Democracies to Officially Recognize It, N.Y. Times,
June 9, 2000, at A29 (reproducing a statement "affirming that
the World War I Armenian Genocide is an incontestable historical
fact"). We note that many Turkish accounts dispute the objectivity
and authenticity of these accounts and, in particular, insist
that the deportations consisted of preventive measures to
relocate certain Armenians who posed a threat, and that most
of the killings were the result of inevitable casualties of the
war and of banditry (in other words, the Events were animated by
political and security-related motives or with ordinary criminal
intent, and not with genocidal intent). See, e.g., Ysmet Bynark,
Foreword, in Selected Books: Armenians in Ottoman Turkey (Oct. 30,
1995), available at http:www.mfa.gov.tr/grupe/eg/eg11/02.htm;
Relocation: Attacks on Armenian Convoys and Measures Taken by
the Government, in Armenian Issue: Allegations-Facts, available
at http://www.ermenisorunu.gen.tr/english/relocation/measures.html.

49 See Armenian Allegations of Genocide: The Issue and the Facts, at
http://www.turkishembassy.org/governmentpolitics/issuesarmenian.htm/.

50 Genocide Convention, Art. IV.

51 ICTR Statute, supra note 5, Art. 3; ICTY Statute, supra note 5, Art. 4.

52 See Payam Akhavan, Contributions of the International Criminal
Tribunal for the former Yugoslavia and Rwanda to Developments of
Definitions of Crimes Against Humanity and Genocide, 94 Am. Soc'y
Int'l L. Proc. 279, 282 (2000); Alexander K.A. Greenawalt,
Rethinking Genocidal Intent: The Case for a Knowledge-Based
Interpretation, 99 Colum. L. Rev. 2259, 2278 (1999).

53 Travaux Preparatoires, pp. 117-139. The term dolus specialis was
used to connote this particular intent. It was repeatedly argued
that what distinguished genocide from murder was the particular
intent to destroy a group; as the Brazilian delegate pointed out,
"genocide [is] characterized by the factor of particular intent
to destroy a group. In the absence of that factor, whatever the
degree of atrocity of an act and however similar it might be to
the acts described in the convention, that act could still not be
called genocide." Id., pp. 81-89.

54 Travaux Preparatoires, pp. 129-139. See also Greenawalt, supra
note 52, at 2278.

55 Travaux Preparatoires, p. 133. The protected groups identified by
the Siamese delegate later changed.

56 See, e.g., Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T,
Judgment, (Int'l Crim. Trib. Rwanda, Trial Chamber 1, Sept. 2,
1998), available at http://www.ictr.org/; Prosecutor v. Clément
Kayishema & Obed Ruzindana, Case No. ICTR-95-1-T, Judgment, 1999
WL 33288417 (Int'l Crim. Trib. Rwanda, Trial Chamber II, May 21,
1999); Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-IA-T,
Judgment, (Int'l Crim. Trib. Rwanda, Trial Chamber 1, June 7, 2001),
available at http://www.ictr.org; Prosecutor v. Goran Jelisic,
Case No. ICTY-95-10-A, Appeals Judgment (Int'l Crim. Trib. Former
Yugoslavia, Appeals Chamber, July 5, 2001), available at
www.un.org/icty/brcko/appeal/judgment/index.htm; Prosecutor v.
Sikirica, Case No. ICTY-95-8-T, Judgment, (Int'l Crim. Trib. Former
Yugoslavia, Trial Chamber III, September 3, 2001), available at
www.un.org/icty/sikirica/judgment/indexe.htm; Prosecutor v. Krstic,
Case No. ICTY-98-33, Judgment, (Int'l Crim. Trib. Former
Yugoslavia, Trial Chamber 1, Aug. 2, 2001), available at
http://www.un.org/icty/krstic/TrialC1/judgment/index.htm.

57 In a 300-page judgment issued on September 2, 1998, the Trial
Chamber of the ICTR found a former Rwandan mayor, Jean Paul Akayesu,
guilty of various charges of genocide and crimes against humanity,
the first genocide conviction since Nuremberg. Regarding the germane
issue of criminal intent, the Trial Chamber said "[g]enocide is
distinct from other crimes inasmuch as it embodies a special intent
or dolus specialis. Special intent of a crime is the specific
intention, required as a constitutive element of the crime, which
demands that the perpetrator clearly seeks to produce the act
charged. Thus, the special intent in the crime of genocide lies in
'the intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such." Prosecutor v. Jean-Paul
Akayesu, supra note 56, ¶ 498.

58 See, e.g., Prosecutor v. Krstic, supra note 56, ¶ 571.

59 Paul Glastris, Armenia's History, Turkey's Dilemma,
Wash. Post, March 11, 2001, at B01; Zoryan Institute, Turks
Who Saved Armenians: An Introduction (rev. ed.), available at
http://www.zoryaninstitute.org/Table_Of_Contents/genocide_docs_turksintro.htm.