I am submitting herewith Ambassador ( R) Şükrü M. Elekdağ’ s letter to President Obama for the information of Turkish Forum readers with my best regards. Orhan Tan
İstanbul, 9 April, 2015
His Excellency
Barack Obama
President of the United States of America
Washington D.C.
USA
Dear Mr. President,
I would like first to applaud you for the exemplary leadership, seriousness of purpose and perseverance that you have displayed during the process of negotiations which led to the framework agreement with Iran. This is a diplomatic triumph of historic dimension. The final agreement, once achieved, promises to solidify the non-proliferation regime and significantly contribute to peace and stability in the Middle East and the world. The achievement of the framework agreement also gives hope that critical issues prevailing in the area may be solved with a constructive, unprejudiced and fair approach.
Mr. President,
May I suggest that you similarly approach your preparations for what seems to have become a traditional April 24th statement affecting Armenian-Turkish relations. This would almost assuredly be preferable to and have a far more constructive impact than your annual statements of the last seven years on this matter. These statements have in no way contributed to an authentic resolution of historical controversies, but have instead exacerbated Turkish-Armenian relations. Although your statements omitted the highly charged word “genocide”, you have employed the expression “metz yeghern” which is the exact translation of “genocide” in the Armenian language. As a matter of fact, your statement last year said “Today we commemorate Meds Yeghern and honor those who perished in one of the worst atrocities of the 20th century” and thereby, in effect, reprised the expression “Armenian genocide” that you used frequently during your first election campaign.
Mr. President,
In addition to being a world statesman of the first rank, you are also justifiably regarded as a distinguished scholar of law, having graduated from the world renown Harvard Law School and having instructed law as a senior lecturer at a prominent university. In light of these qualifications, we are particularly perplexed by your characterizations of historically controversial events that took place a century ago in terms that are incompatible with the universal principles of law as well as provisions of the U.S. Constitution and U.S. national law.
“Genocide” is an international crime codified in an international legal instrument, the “Convention for the Prevention and Punishment of the Crime of Genocide”. This was adopted unanimity by the United Nations General Assembly in 1948 and subsequently became the supreme law of the U.S., as stipulated by Article VI of the Constitution pursuant to its ratification by the U.S. Senate. Article II of the Genocide Convention delineates the crime of “genocide” and prescribes the objective/material and subjective/mental elements which should be proven for the existence of the crime. To incriminate a person with the crime of “genocide” or for state responsibility to arise, together with the existence of these two elements of the crime, the fact that the crime has been committed with specific intent must be proven and a competent court must ascertain that the crime has been perpetrated. The Convention’s Article VI specifies that the competent judicial authority is the competent court of the state in the territory of which the alleged act was committed, or an international penal tribunal, the jurisdiction of which has been accepted by the parties. Article IX of the Convention provides that the states can take disputes on matters relating to “genocide” which arise between them to the International Court of Justice.
Mr. President,
Consequently, unless the existence of the material and mental elements of the crime as well as its execution with the specific intent have been proven, and unless the perpetration of the crime has been determined by a competent court, a charge of “genocide” leveled against a person or a state has no legal value and only constitutes a defamation.
Until today no accused has ever been incriminated with the crime of “genocide” or with the “crime against humanity”, which is a crime as odious as “genocide”, without a decision of a competent international criminal court. Indeed, the Nuremberg International Penal Military Tribunal, after a long trial process, found guilty the leaders of the German Nazis accused of “crimes against humanity” and sentenced 22 of them to death. Furthermore, those incriminated of “genocide” for the events which occurred during the Rwanda and Yugoslavia conflicts have been tried and convicted by the Rwanda and Yugoslavia international penal tribunals. As is known, both tribunals are ad hoc courts which had been set up by decisions of the UN Security Council. Saddam Hussein, who was charged with crimes against humanity, was tried and convicted in an Iraqi Special Court which was established in line with the principle of due process of law.
Mr. President,
I am certain that you hold dear the concept of the presumption of innocence whose roots go back to Magna Carta. Article 11 of the Universal Declaration of Human Rights which was adopted in 1948 by the United Nations General Assembly by unanimity, describes the principle of presumption of innocence as follows:
“(1) Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
“(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”
This principle is set forth in the European Human Rights Convention, Article 6 paragraph
“(3) “Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.”
The principle of presumption of innocence is also guaranteed by the Fifth Amendment of the U.S. Constitution which prescribes that “No person shall be held to answer for a capital, or otherwise infamous crime” unless tried fairly and indicted by a court.
Therefore, Mr. President, wouldn’t it be a gross injustice and a grave violation of the principle of the presumption of innocence to heap accusations on Turkey for disputed events of the past?
Mr. President,
As you would agree, the principle of legality, which is as old as the concept of law itself, is a basic concept in both international and national justice. According to this principle, an act is not recognized as a crime unless it is legally defined before the act was committed. “Genocide”, as a word, as a concept, and as a codified international crime, did not exist in 1915. After being defined for the first time by the U.N. General Assembly document 96 (I) on 11 December 1946, it was codified by the U.N. Genocide Convention on December 9, 1948.
Consequently Mr. President, by leveling accusations of the crime of “genocide” (directly during your campaign speeches and indirectly in your 2014 remembrance day statement) haven’t you contravened the two dimensions of this principle expressed by the maxims: nullum crimen sine lege, and nulla poena sine lege – there is no crime without a law, and no punishment without a law?
Mr. President,
The judgments made in your statement appear to us to violate the spirit of the U.S. Constitution which espouses the principle of legality in its Article I, Section 9 by forbidding the passage of ex post facto criminal laws and bans retrospective criminal sanction. We also must note that President Thomas Jefferson, in his August 13, 1821, letter to Isaac McPherson, asserted that “ex post facto laws are against natural right”. This shows that an abhorrence of retroactive application of laws in criminal justice has a deep-rooted legal history in the U.S.
Moreover, the principle of legality is equally prescribed by Article 28 of the 1969 Vienna Convention of the Law of Treaties under the heading, “Non Retroactivity of the Treaties”.
Mr. President,
In light of the foregoing irrefutable points, certain concerns and questions inescapably arise.
What are we to infer from the statement you might make this year regarding the disputed events of 1915, if this statement includes the word “genocide” or, echoing your 2014 statement, employs the word’s exact Armenian translation “metz yeghern” and alleges the massacre of the 1.5 million Armenians?
Wouldn’t such a statement flagrantly violate and flout universal principles of law, international law and the U.S. Constitution? And, to what possible worthy end?
Wouldn’t it constitute for the Turkish people and their forebears a judgment without trial?
Wouldn’t the Turkish people consider this gross injustice inflicted on them as the outcome of narrow domestic political calculus, heedless of basic fairness and shared U.S. – Turkish interests?
Wouldn’t the imputation of historical guilt upon the people of Turkey and upon their forebears, who themselves suffered enormous losses and were exposed to unbearable pains during those tragic times, be at utter odds with your stated proposal before our Parliament to build a model partnership between the United States and Turkey?
Mr. President,
Historian Arthur Ponsonby penetratingly discusses the terrible and enduring effects of war propaganda that persist for generations in “Falsehood in Wartime”:
“The injection of the poison of hatred into men’s minds by means of falsehood is a greater evil in wartime than the actual loss of life. The defilement of the human soul is worse than the destruction of the human body.”
I think that Arthur Ponsonby’s cogent words are valid now and will remain valid in the future. What we need today, more than ever, is an international environment that we can hand over to our children and future generations – a world where peace, security, tolerance, friendship and good will reign, instead of prejudices, hatred and passions for revenge.
For this reason, Mr. President, I must urge you to avoid being influenced by superficial stereotypes regarding the events of 1915 that are rooted in large part in the deliberate wartime propaganda efforts of the World War I Allies. I ask that you foster impartiality and avoid contributing to a deepening of the wounds suffered by the Turkish and Armenian nations in this enormous human tragedy.
In this context, the best course for the U.S. should be, in line with an ethical and evenhanded approach, to encourage the parties to bring to light and to clarify the obscure and ambiguous aspects of the conflict between the Ottoman State and the Armenians.
This, I respectfully submit, would best be accomplished by employing a common, scientifically disciplined research effort by Turks and Armenians regarding their mutual history and by completely opening their archives to examination by a Joint Historical Commission established for this purpose and composed of Turkish and Armenian scholars.
In view of this, Mr. President, a truly constructive and historically valid commemoration of the events of 1915 would be for you to voice your support publicly for the formation of such a Joint Historical Commission and thus open the way of peace and reconciliation to the Turkish and Armenian peoples on the basis of goodwill and truth.
I am submitting these views to your consideration trusting that you will examine them with objectivity and fairness.
With my deepest respect,
Dr. Şükrü M. Elekdağ
Former Ambassador to the USA
Former Undersecretary of State at the Ministry of Foreign Affairs
Former member of the Grand National Assembly of the Republic of Turkey
Deputy from Istanbul
