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 AMBASSADOR JOHN MARSHALL EVANS' KEYNOTE SPEECH AT THE ARMENIAN BAR ASSOCIATION’S 19TH ANNUAL NATIONAL MEETING IN NEW YORK CITY
Secretary of State Dean Acheson once noted that “a high percentage of those whose conversation one finds stimulating and enjoyable…are lawyers.” He was talking about the fact that lawyers’ training and work make them better informed and wiser about the human condition – more sophisticated, in short -- than ordinary folks. The group I myself have found most stimulating and enjoyable to talk to is Armenians. So you represent a rare combination of the two! Thank you for inviting me to be with you today! Please remember that I am neither a lawyer nor an Armenian.
What I’d like to do is, first, to say something about recent developments in the Republic of Armenia; and, second, to discuss the issue of Armenian Genocide recognition and the prospects for obtaining redress. Finally, I will relate these questions to each other.
The concept of free and fair elections was first codified internationally at the Copenhagen Conference on the Human Dimension of the Conference on Cooperation and Security in Europe in 1991, where I participated as deputy to Ambassador Max Kampelman. The term “free and fair” was designed to capture the idea that not only should the voting on election day be free, but that the period leading up to the voting ought to provide fair access to the media for all candidates. The Office for Democratic Institutions and Human Rights in Warsaw was established in order to help the new democracies in the East meet these criteria. ODIHR typically fields both long-term and short-term observer missions aimed at assessing success in approaching each of these two criteria.
As important as free and fair elections are in the new democracies, including Armenia, an equally important criterion – perhaps even more important -- is establishing the rule of law, not only on paper, but in practice. And in this area Armenia has been making important strides. Some examples:
The U.S. Government, through USAID, has been working with Armenian judges and lawyers to develop and implement sensible, yet ambitious, reforms that promote an independent and more reliable judiciary. We have been helping to improve the organization and effectiveness of professional legal associations in Armenia as well as supporting legal education reform through cooperation with a number of universities, particularly in Yerevan, Gyumri and Gavar. In my time as Ambassador, we supported the Chamber of Advocates and its adoption of a new Code of Ethics. I saw recently in the news that the Chamber of Advocates, at its recent General Assembly, had decided to join the Council of Bars and Law Societies of Europe. At the meeting of this European group on May 12th, the Armenian Chamber of Advocates will receive observer status. The Chamber has also adopted a strategic five-year development plan, again with assistance from USAID and the American Bar Association. I know that the Armenian Bar Association has also done a lot to support fellow professionals in the Republic of Armenia, and I hope that this important work will continue. In the summer of 2006, there were some very good appointments to the bench, and some interesting court decisions that constituted progress toward consolidating the rule of law in Armenia, in particular, decisions that recognized the important role of precedent.
But looking at recent political events, we have to say that the violence that broke out in the wake of the February 19 elections constituted two steps backwards for democracy, and two steps backward for Armenia. It should be clear by now that if the law is seen by the people of any country as a tool in the hands of the ruling group, rather than as a system of justice that binds both the rulers and the ruled, there will be problems. In the same way, problems will inevitably arise when it seems obvious to the electorate that elections have been rigged.
Now to the question of the Armenian Genocide, and then I will come back to the present.
On the question of acknowledgement of the Genocide, much progress has been made in the “court of public opinion.” One might even say, as Samantha Power has, that the case has been won, even though H. Res. 106 has not yet passed the lower house of the U.S. Congress. On the even more difficult question of how some form of compensation might eventually be obtained, there seem to be two primary schools of thought.
First is the controversial legal analysis that was conducted by an as-yet-unidentified legal authority under the auspices of the International Center for Transitional Justice here in New York. That analysis, as you may recall, argued that “at least some of the perpetrators of the Events [of 1915] knew that the consequence of their actions would be the destruction, in whole or in part, of the Armenians of eastern Anatolia, as such, and, therefore, possessed the requisite genocidal intent.” The ICTJ study went on to conclude that “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.” But most controversially, the ICTJ study also concluded that “…no legal, financial or territorial claim arising out of the Events could successfully be made against any individual or state under the Convention.” Note that this was a relatively narrow finding. It did not rule out approaches not based on the 1948 Genocide Convention.
When I read this analysis in the fall of 2004, I thought it represented a major conceptual breakthrough. The ICTJ legal scholars had not been asked to render a judgment as to whether the Events of 1915 constituted genocide; they had been asked only to consider whether the 1948 Genocide Convention was applicable to those events, a much narrower task. The conclusion that 1915 constituted genocide was apparently a surprise, at least to the Turkish members of the Turkish Armenian Reconciliation Commission (TARC).
But in 2005, on the 90th anniversary of the Genocide, Alfred de Zayas, a Harvard-trained lawyer now based in Geneva, came to Yerevan and presented a paper at the conference there that April. He has recently updated his work and it will be published this summer in a special issue of the Armenian Review. To summarize, de Zayas argues that Armenian claims did not originate with the Genocide Convention of 1948 and that the Convention merely confirmed pre-existing international law and thereby strengthened the pre-existing rights of the Armenians. He dismisses the question of whether the Convention applies to the Armenian Genocide as a “red herring,” an attempt to “distract attention from the legitimacy [and justiciability] of the Armenian claims.” De Zayas recalls the relevant provisions of the Treaty of Sèvres and the Nuremberg Trials, both of which affirmed “the principle that the crimes of massacres and genocide were always punishable and were not first created by recent conventions or statutes.” De Zayas then goes on to cite some more recent developments in the United Nations that are relevant. We will all want to read De Zayas’s article when it appears this summer in the Armenian Review. It is already posted to his website, www.alfreddezayas.com.
I personally do not think that the findings of the ICTJ legal analysts and De Zayas’s analysis are mutually exclusive. I think both are valuable to have on the table.
But the larger question is what can realistically be achieved. Mark Geragos and his colleagues have shown that a certain measure of compensation to the survivors of the Genocide and their descendants can be obtained from secondary parties such as insurance companies and banks through the courts. This is commendable. But it is worth remembering that even the survivors of the Nazi Holocaust did not win their compensation through the courts, but rather as the result of world public opinion and the diplomatic support of the United States Government, which negotiated settlements with the relevant states, Germany and Austria in particular. There seems at present to be no big power champion for the rights of Armenians in sight, so long as Turkey maintains its policy of denying that anything resembling a genocide ever took place; however, the court of public opinion is in session and this may eventually change.
It seems to me important to press the case precisely in the court of public opinion, to enlarge the constituency for support of Armenian Genocide acknowledgement while keeping political pressure on Turkey to take some form of remedial action. Turkey should, as a first step, establish diplomatic relations with Yerevan without preconditions and open the closed border. This goal can be achieved. But I am frankly skeptical of the possibilities of winning significant compensation from the Turkish State in any court, although the threat of litigation can provide useful leverage. So far as I know, there is only one court to which Turkey can be taken without its consent, namely the European Court of Human Rights in Strasbourg. But there are other things that can be achieved politically and in the “court of public opinion,” and that, it seems to me, is where efforts ought to be concentrated.
This brings me back to the present-day Republic of Armenia. Without gas or oil, or other important natural resources, Armenia needs to become nothing less than the darling of the West, the leading free market democracy in the Caucasus. This is a tall order, but not impossible. The recent setback to democracy will eventually be overcome, but in the meantime it offers Armenia’s enemies an easy target for criticism, and dampens the ardor of those who might rise to defend her. The sooner Armenia can reach her full potential as a free market democracy, the more persuasive her advocates will become in the councils of Western governments. And Western governments and legislatures surely will develop more sympathy for the Republic of Armenia if there is more support among voters.
To sum up, Armenia has many of the necessary ingredients to make herself nothing less than the darling of the West, and, if Armenia is well-regarded, there will be more political support for all Armenian causes, including recognition of the Genocide and making some form of amends. In the court of public opinion, all sorts of evidence can be introduced that might not be admissible in a court of law. Armenians and their friends should take advantage of that, and view the overall challenge as broader than simply a legal one.
Edmund Burke once said that “law sharpens a man’s mind by narrowing it.” I disagree with that and count on the superior sophistication of Armenian law professionals to facilitate understanding of my arguments today.
I again salute you for all that you do both here and with regard to Armenia. Thank you. |
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