The Argentine decision regarding the Armenian genocide: some initial doubts

abril 26, 2011

By Alejandro Chehtman

As previously reported in Aquiescencia (here), on April 1 2011 a federal Judge in Argentina established that the Turkish state perpetrated the “crime of Genocide against the Armenian people, in the period between 1915 and 1923”. This decision was reached in a so-called “truth trial”, and not is part of a criminal law investigation strictly speaking (see heading 1). This is an extraordinary decision on many accounts. Yet, it contains too many shortcomings to constitute an authority of real worth in international law. The memory of the Armenian people and of the massacres perpetrated against it probably deserved better in terms of legal reasoning and fact-finding.

As a preliminary point it may be worth noting that in terms of truth-seeking, these proceedings have been significantly weak. Requests were sent to different countries (among others to Turkey, the United Kingdom, the US, Germany, France and even the Holy See) and to International Organizations such as the UN, without any form of valuable information being received. Armenia did in fact respond and sent around 12,000 documents (none of which referred to the relatives of the people who had initiated the investigation). The Argentine Magistrate, however, only considered explicitly a number of witness testimonies which provided only hearsay evidence about the facts, and just “annexed and adopted” the documentary evidence provided by the private accuser. At no point he specifically examined the evidence before him; nor did he indicated to what extent these documents determined the truth of the allegations or, most significantly, what were the precise facts that he considered sufficiently established for the purposed of his decision. From the point of view of truth-seeking, then, it is not much what this decision has to offer to the Armenian people.

Irrespective of this issue, there are two other pieces of the legal reasoning in this decision that warrant consideration here and, perhaps, being further discussion in this or other fora. On the one hand, the Judge refrained from considering at all whether Turkish could invoke immunity from jurisdiction before Argentine courts with regards to issues of this nature. Both the Argentine law (Act 24.488) as well as the relevant decisions of its Supreme Court (see, eg, Zubiaburre decision of 1899, and the more recent incorporation of the limited conception of state immunity in the Manauta decision of 1994) seem to recognize immunity from jurisdiction to foreign states in this kind of proceeding. And yet, the judge in this decision has not invoked any argument explaining why he considers that immunity can and should be lifted. In this respect, there is no continuity with the decision of the UK Court of Appeals in Jones v. Saudi Arabia, or the dissenting opinion in Al Adsani before the ECtHR). This seems certainly a missed opportunity to say something meaningful, if the judge so believed, about why immunity from jurisdiction could not be invoked for acts of this nature.

On the other hand, the more difficult issue that the decision left unaddressed is how it determined the responsibility of the Turkish state for the crime of genocide when there is significant agreement among scholars that at the time of the events there could hardly have been a rule of customary international law prohibiting genocide per se. As it is well known, the notion of genocide was coined and popularized by Raphael Lemkin as a response to the horrible crimes perpetrated by the Nazi regime during WW2 (see, eg, William Schabas, Genocide in International Law (Cambridge: CUP, 2009), chapter 1). On this point, the judge simply refers to previous decisions of the Argentine Supreme Court which established that certain acts of genocide had been perpetrated in Argentina during the 1970s. It does not consider at any point the existence of a rule of customary international law in force at the time of the events, and most significantly perhaps it does not state why this would not be an obstacle for this particular decision.

It is hard for anyone not to feel great intellectual and spiritual sympathy for any legal proceeding that intends to set the record straight and redress important omissions by the international community in terms of providing justice to victims of mass atrocities. And yet, the decision hereby reported seems to present certain key features that undermine its authority as an accurate statement of the law or the relevant facts.

(Versión en español aquí)

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