Given the difficulty in proving
the special intent to destroy, the charge of genocide is not one to be brought

No-one can reasonably argue with the clear statements made by
German President Joachim Gauck in his speech on Armenia held on 23 April 2015:
“one hundred years ago, hundreds of thousands of members of the Armenian
people” became “the victims of planned and systematic murder”. It is probably
also accurate to say that these acts, for which the Ottoman Empire was
responsible, were perpetrated against the Armenians “because they were
Armenians”. But did these acts really constitute “genocide”, as Gauck further
stated, in a legal sense?

According to the Convention on Genocide adopted in 1948, we are
facing a genocide when certain acts are committed against a “national,
ethnical, racial or religious group” with “the intent to destroy [it] in whole
or in part”. The term derives from the Greek γένος (race, tribe) and the Latin caedere
(to kill). The Armenians doubtlessly constitute such an (ethnic and religious)
group; however, did the Turkish perpetrators really act with the required
intent to destroy? Is it even possible to designate prior conduct using a legal
category that did not exist at the time said conduct occurred?

These are by no means mere juristic quibbles. The prohibition of
genocide constitutes so-called peremptory international law (ius cogens).
The “prevention and punishment” demanded by the Convention is thus directed not
only at the perpetrating and territorial State, but at all States on our
planet. They are all called to prevent genocide and – if prevention is
unsuccessful – to punish it. The extraordinary degree of wrongdoing inherent in
genocide – the attack on one of the abovementioned groups and the denial of its
right to exist implicit in this attack – makes it the “crime of crimes”, to
which particular stigma is attached. Thus it is quite understandable that a
State should try to defend itself against the stigmatisation associated with

Of course it is possible to qualify genocidal conduct as such ex post,
retrospectively, as it were. However, the question of whether it is admissible
to retroactively prosecute and adjudicate conduct as “genocide” is a different
matter. According to the dominant understanding in civil law jurisdictions, the
legality principle in its variant of the prohibition of retroactive legislation
(nullum crimen
sine lege praevia
) impedes such retroactive adjudication. Thus, a
person can only be held responsible for a conduct on the basis of the criminal
law applicable at the time that the events took place. This is why the
perpetrators of the Nazi Holocaust could not be convicted of genocide – at
least not by German courts – but “only” of mass murder. Nor could the Turkish
perpetrators have been convicted of genocide for their acts (which predated the
Holocaust), even if genocide had been defined as an offence and a court set up
immediately afterwards. Of course, from the perspective of international
criminal law a more liberal understanding of the prohibition of retroactivity
may be called for. Accordingly, the punishability on the basis of customary law
or even general principles of law may be sufficient. This is the path taken in
the so-called “Nuremberg Clause” of Article 15(2) of the International Covenant
on Civil and Political Rights and Art. 7(2) of the European Convention on Human
Rights (which is why Germany originally made a reservation to the latter
article). Interestingly, Article 9 of the American Convention of Human Rights
does not contain such an exception and the prohibition of retroactivity has
been confirmed for the International Criminal Court (“ICC”) by Article 22(1) of
the Rome Statute. In any case, this issue is not decisive, as the prohibition
of retroactive legislation certainly does not preclude the retrospective –
extrajudicial – classification of past conduct as genocide. To be sure,
however, in this respect, too, the legal standards of the Genocide Convention
must apply, at least if the aim of blaming a given group of persons or a nation
with genocide is to achieve the abovementioned legal consequences and moral
stigmatisation. “Genocide” is nothing but a legal term; otherwise it will
degenerate into a vague concept of political combat.

As a legal concept, the crime of genocide requires the intent to
destroy. This intent renders it – to use the language of criminal law – an
offence with a surplus or ulterior intent, i.e., an offence in which the
specific mens
(the perpetrator’s intent to destroy the group) goes beyond the
actual actus
(the objective acts of aggression). Herein lies the crux of
the matter. If charges of genocide are brought, then this special intent (dolus
) has to be proved. However, the German President’s speech
made no mention of it. And this proof is also a problematic issue for
specialist historians, who well-nigh unanimously speak of the Armenian
“genocide”. For example, recently the German radio station Deutschlandfunk
broadcast an interview with the distinguished Zurich historian Hans-Lukas
Kieser, who had difficulty in providing a clear response when asked directly
about the “intent to destroy”: Kieser stated that it was “difficult” to “find
plans…that really demonstrate this intent one hundred percent…clearly in legal
terms”. At the same time, Kieser affirmed that this intent was ultimately
present, given the “whole organisation” and the “large scale” of the massacres.
However, this cannot completely satisfy a jurist schooled in international
criminal law and familiar with the difficulty of proving this intent.

The intent to destroy constitutes a significant obstacle for
genocide convictions. Indeed, for many (international) courts it has proved
insurmountable and is the main reason why convictions for genocide under
international law are extremely rare. The only examples of successful
convictions in international courts are the Yugoslavia Tribunal’s Srebrenica
trial and some sentences passed by the Rwanda Tribunal for the genocide
perpetrated by the Hutu against the Tutsi. At the ICC, genocide proceedings are
currently only taking place against Sudanese President Omar al-Bashir (who has
just been re-elected!) for the alleged crimes carried out in the Darfur region
of Sudan. Whether this will end with a conviction is doubtful, not least
because of the difficulty to prove the intent to destroy. Given the lack of evidence,
such as an order to destroy a particular group, a conviction will usually only
be successful if the destructive intent can be derived from the circumstances
of the respective conduct – in line with the old doctrine of dolus ex re
(intent derived from the objective facts).

None of this excludes at the outset that the crimes committed
against the Armenians may indeed merit a genocide verdict based on a
comprehensive review of the available sources. However, in light of the
difficulties demonstrated above, the charge of genocide is not one to be
brought lightly. We should also remain aware of the differences between the
Armenian case and the Holocaust perpetrated by the National Socialists. The
latter’s classification as genocide is based upon documentary evidence
(especially the infamous document of the Wannsee Conference on the Final
Solution to the Jewish Question) that clearly proves the Nazis’ intent to
destroy the Jewish people. Furthermore, this intent was confirmed in a large
number of trials, such as the Jerusalem Eichmann Trial and the Frankfurt
Auschwitz Trials, even though in the German trials the prohibition of
retroactivity meant that genocide – subsequently incorporated into German law –
could not be applied as a criminal offence. In Nuremberg, the Nazi perpetrators
were actually charged with genocide – despite the prohibition of retroactivity
and the lack of a clearly defined offence – and some of them even convicted of
it (as a crime against humanity!) in the famous Jurists’ Trial (on this see
Kevin J. Heller, The
Nuremberg Military Tribunals
, OUP 2011, pp. 249-50). Concerning the
question of Armenia, we can conclude from all of this that no final judgment
should be made before a report has been presented by an independent historical
commission duly advised by international criminal lawyers.