Genocide as a Legal Term: What the 1948 Convention Requires and Why Ankara Says the Events of 1915 Do Not Meet the Test

Why It Matters

In international law, genocide is a narrowly defined crime: one of five listed acts committed with the specific intent (dolus specialis) to destroy a protected group, in whole or in part, as such. Ankara argues that the Events of 1915 do not meet this legal test and that no competent international tribunal has ruled otherwise. Many states, parliaments and scholars disagree and use the term. This guide explains the legal mechanics and presents both positions, so that the legal question can be separated from the historical and political ones.

Background

What the 1948 Convention Says

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the UN General Assembly on 9 December 1948 and entered into force on 12 January 1951. Article II defines genocide as any of the following acts 'committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such':

• killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting conditions of life calculated to bring about its physical destruction;
• imposing measures intended to prevent births within the group;
• forcibly transferring children of the group to another group.

Article III makes genocide, conspiracy, incitement, attempt and complicity punishable. Article VI provides that persons charged are tried by a competent tribunal of the State where the act occurred or by an international penal tribunal with jurisdiction. Article IX allows disputes between States Parties over the Convention's interpretation or application to be brought before the International Court of Justice (ICJ).

Specific Intent in Case Law

The ICJ, in Bosnia and Herzegovina v. Serbia and Montenegro (2007), treated dolus specialis as the defining element that separates genocide from other grave crimes. It held that, where intent is inferred from a pattern of conduct, genocidal intent must be the only reasonable inference. The ICJ applied a similarly demanding approach in Croatia v. Serbia (2015). The International Criminal Tribunal for the former Yugoslavia reached genocide findings for Srebrenica in 1995, and the ICTR did so for Rwanda in 1994. These are the standards against which any retrospective claim is measured.

The Non-Retroactivity Debate

The Convention contains no clause giving it retroactive effect. Article 28 of the 1969 Vienna Convention on the Law of Treaties states the general rule that treaties do not bind parties regarding acts that took place before entry into force. In Croatia v. Serbia, the ICJ held that the Convention's obligations do not apply to conduct predating its entry into force between the parties. Those who use the term 'genocide' for 1915 answer that the Convention codified a pre-existing prohibition. The ICJ's 1951 advisory opinion on reservations observed that the principles underlying the Convention are binding on States even without a treaty obligation, and the prohibition is now widely regarded as customary law.

Chronology

The sister analyses The Global Anatomy on the Genocide Convention criteria and Regional Balance on the 27 May 1915 Relocation Law cover the same legal ground from complementary angles.

Key Players & Positions

Armenia and Armenian Diaspora Organisations

Armenia's official position, reflected in its 1990 Declaration of Independence and repeated in statements by its Foreign Ministry and leadership, is that the Ottoman Armenians suffered genocide in 1915–1916. Armenia and diaspora groups argue that the deportations, mass deaths and destruction of communities show intent to destroy the Armenian population as such. They also hold that 24 April is the day of remembrance and that recognition is a moral and political matter, not only a legal one.

Parliaments and Governments That Use the Term

Dozens of states and legislatures have adopted resolutions or statements using the word 'genocide'. Examples include France (2001 law), the German Bundestag (2016 resolution), and the United States, where Congress passed resolutions in 2019 and President Biden issued a recognition statement on 24 April 2021. These bodies generally present their acts as historical acknowledgment, and they do not usually claim to be exercising the judicial function the Convention assigns to competent tribunals.

Scholars and Legal Experts

The International Association of Genocide Scholars adopted a resolution in 1997 affirming that the Armenian case is genocide. The 2002 ICTJ analysis concluded that the Convention would not impose legal liability for the Events of 1915 because it is not retroactive, but that the events could be said to include the elements of genocide as defined in the Convention. Other historians and legal scholars, including some in Western universities, dispute the intent finding or emphasise the wartime context, the uneven archival record and the reciprocal civilian suffering in Anatolia and the Caucasus. Scholarly opinion is therefore not unanimous, though a large number of genocide specialists favour the genocide characterisation.

European Court of Human Rights

In Perinçek v. Switzerland (2015), the Grand Chamber found that Switzerland had violated freedom of expression by convicting a Turkish politician for denying that 1915 was genocide. The Court stated that it was not its task to decide whether the events amounted to genocide. It also noted that the legal concept of genocide is narrow and that few international judgments have applied it, which both sides cite in support of their arguments.

Source Comparison

The editorial approach of Politepolity is to attribute each claim to its source, as explained in Editorial Principles. For more on the archival side see Archive of Nations and Bloc Politics.

Key Terms & Related Guides

• Dolus specialis: the special or specific intent required for genocide, namely the aim to destroy a protected group as such, beyond the intent to commit the underlying act.
• Competent tribunal: under Article VI, a court of the State where the act took place or an international penal tribunal with jurisdiction.
• Non-retroactivity: the rule that a treaty does not govern acts that occurred before it came into force for the parties.
• Relocation and Resettlement Law (27 May 1915): the Ottoman wartime law on relocating populations, which Ankara describes as a security measure and critics describe as the legal basis of the deportations.
• Joint Historical Commission: the 2005 Turkish proposal for a joint commission of historians, with open archives, to study the Events of 1915.

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Politepolity presents global and regional affairs with a dedicated perspective from Türkiye. Sections marked 'Türkiye's Position' reflect official Turkish policy and legal doctrines as stated by Turkish primary sources.