CAMBRIDGE–Mass.-The current issue of the influential Harvard Human Rights Journal carries an article by the world-famous jurist M. C. Bassiouni–Professor of Law at Chicago’s DePaul University and President of International Human Rights Law Institute.
The purpose of the article is to persuade the community of legal experts world-wide and indirectly political leaders–of the dire necessity to establish a Permanent International Criminal Court to effectively deal with crimes against humanity that primarily involve the crimes of genocide. In his review of the historical record of the failure of the civilized world to deal with this problem–Bassiouni focuses his attention on the case of the Armenian Genocide where this failure is seen as being most striking and–in terms of its disastrous consequences–most dramatic.
In this review the American legal expert-who for a period was involved in the prosecution of war crimes in Bosnia-points out the fact that in 1919 a body of jurists–created by the Paris Peace Conference–recommended the prosecution of the perpetrators of the World War I Armenian massacres. In doing so–this group of international law experts relied upon the famous Martens clause which stipulates such prosecution in cases where not-yet-codified offenses against "the principles of the law of nations" such as "the law of humanity,"usage established among civilized peoples," and "the dictates of public conscience" can be established and proven.
This clause was made part of the Preamble of the 1907 Hague Convention. Despite the objections of the American and Japanese members of the Subcommission–the rest of the group adopted this recommendation that was particularly pushed by the French–Greek and Belgian representatives. The objections of the American and Japanese members rested on the assertion that the notion of "humanity" was both vague and variable and that there were no concrete existing laws on the basis of which to execute any prosecution.
These recommendations found expression in a number of clauses of the Sevre Peace Treaty–especially in Articles 226–228 and 230. But the Treaty failed to enter into force because it was not ratified–and was ultimately rejected by the Kemalists who substituted for it the Lausanne Treaty. In explicit language Bassiouni berates the Powers for undermining the principles of international justice by way of resorting to expediency and realpolitik. He accuses these Powers with acts of "tampering–limiting–or curtailing justice as was evident when the recommendations … for the prosecution of Turkish officials was set aside…." (p. 58). His explanation for this resort to realpolitik is: "Because the Allies were concerned about the stability of Turkey and eager not to alienate the new Turkish ruling elite which was partial to the western powers–Turkish officials were given impunity for war crimes… Political concerns–thus–prevailed over the pursuit of justice." (p. 17).
Yet–Bassiouni challenges the wisdom of such realpolitik: "But few think of the past’s victims–or of the effect of a policy of impunity on the future. Only after the present political culture realizes justice is an indispensable component of peace will the establishment of a permanent international criminal justice system be possible." (p. 58).
In a previous article in Indiana International Comparative Law Review (vol. 1–No. 1–Spring 1991–pp. 2-3)–he raised the same issue of impunity with reference to "the Armenian case of genocide in this century," the recognition of which case by the 1919 Peace Conference Commission as a prosecutable and punishable case–established the principle of "crimes against humanity as a legal reality." Moreover–and perhaps most critical–the failure to effect such prosecution and punishment "in the post World War I era … came to haunt the very same Allies–and particularly–the United States after World War II." (p. 4).
Throughout the texts and footnotes of these two articles–and in particular in his major book–his magnum opus on international jurisprudence-Crimes Against Humanity in International Criminal Law (Dordrecht/Holland–Boston and London–1992-Prof. Bassiouni repeatedly refers to Prof. Vahakn Dadrian’s works on the Armenian genocide.
He especially relies on Dadrian’s legal analysis of that genocide which appeared as an extensive monograph in the Summer 1989 (vol. 14–No. 2) issue of the prestigious Yale Journal of International Law. In commenting on the value of this work–Prof. Bassiouni writes in his book:
"Of all the conflicting and contradictory literature on the subject–including many Turkish publications denying–justifying or explaining what happened–Dadrian’s article is the most legally convincing and from other accounts–the closest to historical accuracy with such debated facts." (p. 169).