On the Richard Falk & Hilal Elver “approach”

by on 2012/01/11  •  In Comments

Yerevan, 6 September 2008, football match between the national teams of Armenia and Turkey


Today I wrote the following comment to a friend asking my opinion on the article entitled “Healing wounds: Seeking closure for the Armenian massacres” by Richard Falk & Hilal Elver, in the 9 January 2012 issue of Today’s Zaman.

The authors are at best misguided, at worst it is deliberately misguiding.

Their approach regarding the criminalization of “genocide or Holocaust denial” is based on the American First Amendment principle and disregards the European approach, which is clearlu represented in the EU November 2008 “Framework decision on combating racism and xenophobia”.

The article is more a political comment than a legal opinion, when it talks about what consequences the criminalization might have on and in Turkey.

According to his/their legal argument, i.e. can events before the 1948 Convention came to power in 1951 be legally qualified as genocide?, implies that the Holocaust can not be legally qualified as genocide too, which he/they do not say so outright. A good response to this and other arguments in the article is Alfred de Zayas’ “The Armenian cause and International law” article, in which de Zayas writes before the Falk/Elver article: “here are those who claim that the Armenians have no justiciable rights, because the Genocide Convention was only adopted 1948, more than thirty years after the Armenian genocide, and because treaties are not normally applied retroactively. This, of course, is a fallacy, because the Genocide Convention was drafted and adopted precisely in the light of the Armenian genocide and in the light of the Holocaust. Not only the Armenian Genocide but also the Holocaust predated the Convention, and no one would question the legitimacy of the claims of the survivors and descendants of the victims of the Holocaust, simply because the Nazi atrocities were committed before the entry into force of the Genocide convention. Moreover, this argumentation is a kind of red herring, intended to confuse and to distract attention from the legal basis of the Armenian claims. Indeed, the rights of the Armenians do not derive from the Genocide Convention. Rather: the Genocide Convention strengthens the pre-existing rights of the Armenian to recognition as victims, to restitution and compensation.”

The Falk/Elver article in fact is a denialist article, because it questions the veracity of the Armenian Genocide when it doubts that there would be any “written or documentary evidence of a clear intent by [the Ottoman/Turkish] governmental leaders to commit the crime of genocide.”

Finally, the main objective of the Falk/Elver article is to “deliver” Turkey from any obligation for reparation when it says that their “approach” would “enabl[e] Turkey to make such a concession without fearing such legal implications as Armenian demands for reparations and the recovery of lost property.” They wish to bypass the fact that, as de Zayas states, “the rights of the Armenians do not derive from the Genocide Convention. Rather: the Genocide Convention strengthens the pre-existing rights of the Armenian to recognition as victims, to restitution and compensation.”

So, I think it really is a deliberately misguiding article.

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