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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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The Ottoman State Special Military Tribunal for the Genocide of the Armenians

The Ottoman State Special Military Tribunal for the Genocide of the Armenians

‘Doing Government Business’

Chapter:
(p.77) 4 The Ottoman State Special Military Tribunal for the Genocide of the Armenians
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Balint Jennifer

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0004

Abstract and Keywords

This chapter discusses the establishment of Ottoman Courts-Martial after World War I to prosecute the genocide of the Armenians. The trials created an important legacy for the prosecution of genocide and provided an official record of the genocide of Armenians perpetrated by the Ottoman state from 1915–1918. The record of these trials, however, has been actively buried by the new Turkish state. They have been largely hidden for years, resurrected mainly by a few scholars with some access to the archive. Many documents have been destroyed, and the archive is still largely closed. This has supported Turkey's insistence for years that the genocide did not happen.

Keywords:   state crimes, war crimes, crimes against humanity, genocide, Ottoman Courts-Martial, Turkey

Legal stories are often buried. Political and social processes subvert and suppress the findings and processes of law. What begins as an important authoritative statement of harm becomes hidden. We see many cases of this. With the political settlement between the new state of Bangladesh, India and Pakistan, for example, the international crimes prosecutions initiated in Bangladesh in the wake of the 1971 war of secession were derailed and the proposed tribunal aborted.1 Another hidden story has been the in absentia trials of Pol Pot and Ieng Sary at the end of the Khmer Rouge regime which, despite their importance to many victims at the time, due to the Cold War context and as political trials were shunned by the international community.2 In Australia, the 1881 Parliamentary Board of Inquiry into the management of the Coranderrk Aboriginal station in the Australian state of Victoria that ruled in (p.78) favour of local Aboriginal residents in their efforts to stay on the land, was subsumed under political developments that saw the enactment of legislation known as the Half-Caste Acts and the subsequent breaking up of the station.3 Another example is the judgment by a state court in Australia that found genocide had been committed in the course of British colonization, yet that judgment has failed to enter public consciousness.4 Stories of injustice recognized by law, yet hidden.

These findings of state crime, of genocide and crimes against humanity, are often contested by the state. Legal statements of state-perpetrated harm are the most disputed stories, as they go to the core of state identity and nationhood. The case of the Ottoman Courts-Martial established in the wake of World War I to prosecute the genocide of the Armenians, with an estimated sixty-three trials run, yet abandoned due to the rise of Kemalism, is a key illustration of this. What had been a recognized and mourned event by the Ottoman state became, through the changed political situation in the formation of modern Turkey, a denied and disputed genocide, with the trials subsequently forgotten. These trials both tell a mostly untold story, that of the Armenian genocide, as well as being a hidden story themselves.

Modern-day Turkey has waged such a campaign of denialism that it has been mostly left to the Armenian community to remember the genocide perpetrated against its members from 1915–1918.5 Claims have been made that the deportations (p.79) (the main feature of the genocide) were a ‘wartime necessity’ (yet communities away from the war zone also faced deportation)6 or that the Armenians were an internal threat (yet the Courts-Martial in its indictment noted that ‘the deportations [represented] neither a military necessity, nor a punitive disciplinary measure’,7 and documentary evidence gathered by the Tribunal also disproves this allegation).8 Recent attempts within Turkey have begun to counter the official national myth.9 Parliaments around the world are acknowledging this genocide.10 Reparations claims now being brought by the Armenian community may well provide a recognition that has been denied. Bringing the record of these trials to light, may also serve to counter official denialism.

There has been scant academic analysis of these legal proceedings. The Turkish state archives have been closed to most scholars, and while some of the Courts-Martial proceedings were included at the time as special supplements in the government gazette Takvim-i-Vekâyi, these remain unpublished and untranslated as a single collection.11 Further, as Taner Akçam notes, the location of the complete official (p.80) court records is unknown (while some copies are filed in the Armenian patriarchate in Jerusalem, these are handwritten and not original copies).12 What this has meant is that much of the work has of necessity focused on piecing together a picture of the trials, including drawing on other government sources such as the United States and British archives. The main analysis until recently—with the publication of Raymond Kévorkian’s The Armenian Genocide: A Complete History, which includes a section on the trials, and of Taner Akçam’s A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, and the recent publication of Vahakhn Dadrian and Taner Akçam’s Judgment at Istanbul, the first major work on the trials—has been the substantial work of Vahakhn Dadrian.13 It is primarily upon Dadrian’s work, together with that of John Kirakossian and Taner Akçam, that I rely for information on the Courts-Martial.

(I) The ‘Forgotten Genocide’ of the Armenians

The genocide of the Armenians was perpetrated by the Ottoman state under the cover of World War I. With the entry of Turkey into the war, an opportunity arose for the destruction of what was seen as an alien nation, the Christian Armenians, and the establishment of a ‘Pan-Turkic empire’. The Committee of Union and Progress (CUP) or Ittihad Party (known as the Young Turks), which had on its establishment been a force for change, moved away from what Richard Hovannisian has described as egalitarianism Ottomanism to the ideology of Turkism.14 Under the leadership of the Young Turks, the Ottoman state moved to annihilate the Armenians (p.81) in their search, as Hovannisian has noted, for a homogeneous Turkey rather than a multinational Ottoman Empire.15 The entry into the war provided the opportunity for this. The secret decision to destroy the Armenian people was taken by the key leaders of the Ittihad Party—Talat, Enver and Cemal (the ‘triumvirate’).16 Robert Melson notes that the deportations were coordinated between Talat Pasha’s Ministry of the Interior, which was in charge of the civilian population, and Enver Pasha’s Ministry of War, which was in charge of the disarmed labour battalions (which contained Armenian soldiers).17

The genocide was perpetrated in stages. First came the separation of Armenian soldiers serving in the Ottoman armies into labour battalions. Then, on the night of 24 April 1915, Armenian political, religious, educational, and intellectual leaders throughout the Ottoman state were arrested, deported into Anatolia, and killed.18 Armenian populations across the Ottoman state were forcibly deported and stripped of their possessions. Armenians serving in the Ottoman armies were also killed. The mass deportation of Armenians was intended to result in their death, with abductions and starvation along the way, together with great cruelty to the mainly women and children. As Hovannisian explains:

The adult and teenage boys were, as a pattern, swiftly separated from the deportation caravans and killed outright...The greatest torment was reserved for the women and children, who were driven for months over mountains and deserts, often dehumanised by being stripped naked and repeatedly preyed upon and abused. Intentionally deprived of food and water, they fell by the thousands and the hundreds of thousands along the routes to the desert.19

Eyewitnesses were later to report on the horrific use of medical experimentation on children, and on the brutality of the destruction of the Armenians in villages and towns throughout the Ottoman state.20 The orders to destroy the Armenians came from the centre through a series of telegrams sent by the ruling Ittihad leaders to ministers and local governors. One telegram sent by Cemal to the Minister of the Interior stated that the ‘number of Armenians deported from Diarbekir amounted to 120,000’, and that ‘every Muslim who tries to protect Armenians will be hanged in front of his house, and his house will be burned down’.21 Governors were instructed to implement the orders without question. Those who refused were demoted.

(p.82) An estimated 1.2 million Armenians (which included also the Assyrians and Pontiac and Anatolian Greeks) were killed from 1915–1918. Henry Morgenthau, the American Ambassador at the time, wrote: ‘I am confident that the whole history of the human race contains no such horrible episode as this. The great massacres and persecutions of the past seem almost insignificant when compared to the sufferings of the Armenian race in 1915.’22

Law was a partner to this destruction. The Temporary Law of Deportation, Sevk ve İskân Kanunu, was drafted in May 1915 to legitimize the deportations of the Armenians. This use of law is interesting, in that while the Deportation Law was drafted after the deportations had begun, it was still seen as important to have legislation to authorize it. Using the term ‘deportees’ rather than ‘Armenians’, the law was deliberately not introduced to Parliament and instead ratified by the Grand Vizier and Cabinet.23 In the subsequent Courts-Martial, the verdict against the ‘Responsible Secretaries and Delegates’ found that the deportations were ‘exploited as a pretext for personal gain’ (in that they gained access to Armenian property) and that ‘[t]‌he deportation was carried out in a manner [so as] to include every part [of the country], in contradiction to the spirit behind the wording of the Law on Deportation’.24 Law thus, while a tool of the genocide, was still designed to set limits.

The following year a law to allow the release of prisoners to serve in the Special Organization Unit, the group responsible for much of the killing, was rushed through Parliament—yet the prisoners had already been released and most of the killings completed.25 A law to authorize the confiscation and selling of Armenian property—the Temporary Law of Expropriation and Confiscation—was passed in late 1915 with one sole voice of opposition in the Senate, Senator Ahmed Riza, who stated that the law was ‘inimical to the principles of law and justice’.26

These laws made the perpetration of this state crime ‘allowable’.27 They provided a framework of legitimation for persecution. It was a call to law, yet the genocide was not implemented through law—rather, law was used as a tool of legitimation, with the relevant legislation either passed after the event or not passed through the proper channels at all. It was only after the war that law came to play a far more important role—that of securing redress for a genocide that had been legitimized by the legal and political processes themselves.

(p.83) (II) The Promise of International Proceeding

Any trials were supposed to be internationally driven. On 24 May 1915 the Allies (Britain, France and Russia) made the following joint declaration:

In view of these new crimes of Turkey against humanity and civilisation, the Allied governments announce publicly...that they will hold personally responsible...all members of the Ottoman government and those of their agents who are implicated in such massacres.28

Several Articles stipulating the trial and punishment of those responsible for the genocide had been inserted into the Peace Treaty of Sèvres, signed on 10 August 1920. Article 144 stated that ‘[t]‌he Turkish Government recognises the injustice of the law of 1915 relating to Abandoned Properties (Emval-i-Metroukeh)’ and outlined measures of restoration, Article 228 stated that ‘[t]he Turkish Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the prosecution of offenders and the just appreciation of responsibility’, and Article 230 continued:

The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914.

The Allied Powers reserve to themselves the right to designate the tribunal which shall try the persons so accused, and the Turkish Government undertakes to recognise such tribunal.

In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognise such tribunal.29

‘Crimes against humanity’ was the original charge, which was changed to massacres (it had been opposed by the US, who preferred ‘crimes against the law of war’, and Japan). Yet the court provided for in Article 230 of the Treaty of Sèvres—the Allies reserved ‘the right to designate the tribunal which shall try the persons so accused’—never eventuated, and in fact the Peace Treaty of Sèvres was abandoned (signed but never ratified). There was even a provision for a court established by the League of Nations to be the designated tribunal. Article 230 of the Treaty bound Turkey to recognize its jurisdiction if the League ‘created in sufficient time (p.84) a tribunal competent to deal with the said massacres’. Yet this international court was not established.

Taner Akçam notes that ‘the Allied Powers tied the terms of the peace treaty to the Ottoman government’s attitude toward punishing the perpetrators of the massacres’.30 In fact, there was a belief among the Allies that the Turkish nation as a whole should be punished—the British deputy high commissioner in Istanbul wrote in 1919 to the Paris peace conference:

Punishing those responsible for the Armenian atrocities means punishing all Turks. That is why I propose that the punishment, on the national level, should be the dismemberment of the last Turkish Empire, and, on the individual level, putting on trial the senior officials on my list so as to make an example out of them.31

Accountability for genocide was, however, connected to Allied ambitions over the Ottoman state—for the Russians, claims over the Straits, and for the ‘Great Powers’ as a whole, the partitioning of Anatolia and a desire to ‘throw the Turks out of Europe’.32 Britain also felt a great deal of guilt towards the treatment of the Armenians, having withdrawn from an earlier agreement that would have seen the Armenian provinces put under Russian instead of Ottoman control.33

The successor to the Treaty of Sèvres, the Treaty of Lausanne, omitted all mention of war crimes.34 Despite holding many indicted war criminals hostage on the islands of Mudros and Malta, allegedly for their safety, the British held no trials. There had been great public outrage in Britain as to the treatment of the Armenians, with calls for trials to be held. The British had begun arresting Ottoman officials and suspected war criminals, together with giving lists of suspects to be arrested to the Ottoman authorities.35 Yet Turkish opposition to Ottoman nationals being tried before foreign courts led to the cessation of any British trials (together with a concern that there was insufficient documentary evidence to convict). The prisoners were handed back to Turkey in October 1921 after a promise by the Kemalist government that they would be tried. As Akçam notes, however, ‘most of them moved to Ankara and were given posts in the nationalist government’.36 The British Foreign Secretary, Lord Curzon, was to write in 1922, ‘I think we made a great mistake in ever letting these people out. I had to yield at the time to a pressure which I always felt to be mistaken.’37

Despite a beginning that saw the Allies boldly proclaim they would ‘hold personally responsible…all members of the Ottoman government and those of their agents who are implicated in such massacres’, and recognition of the massacre of the Armenians at the Paris Peace Conference by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, no international or Allied trials were held. Legal proceedings convened by the British concerned not the killings of the Armenians, but atrocities committed against British soldiers. The irony of the (p.85) original Allied declaration is thus that with the defeat of Turkey, the end of World War I, Turkey’s signing of the Armistice on 30 October 1918, and the cessation of the genocide against the Armenians, it was not the Allies who initiated legal proceedings against the perpetrators of the genocide, but the Turks themselves. In fact, the Ottoman state had begun this process already.

(III) Establishing the Courts-Martial

The process of establishing a legal process of accountability to address the crimes perpetrated against the Armenians began in the Ottoman Parliament. This was in part due to the public outcry at the escape from Istanbul on 1 November 1918 of seven key leaders of the Young Turks (Mehmed Talât, Ismail Enver, Ahmed Cemal, Drs Mehmed Nazim and Behaeddin Şakir) and police and security chiefs Osman Bedri and Hüseyin Azmi. As Kirakossian notes, based on records of speeches printed in Takvim-i-Vekâyi, in the aftermath of the Armistice signed on 20 October 1918, ‘the Armenian massacres became the primary topic of conversation in the Ottoman Parliament’, with one parliamentarian decrying ‘[w]‌e inherited a country turned into a huge slaughterhouse’.38

On 2 November 1918, a motion for a trial of the ministers of the two wartime cabinets was introduced by a Deputy in the Chamber of Deputies of the Ottoman Parliament, invoking ‘the rules of law and humanity’.39 The motion included as an attachment ten charges against the ministers, including aggression, military incompetence, political abuses, and economic crimes. Charges No. 5 and No. 10 related to the killings of the Armenians. No. 5 challenged the enactment of the Temporary Laws, with their associated ‘orders and instructions’ and subsequent ‘disasters’ being ‘completely contradictory to the spirit and letter of our Constitution’. Charge No. 10 indicted the ministers for the creation of ‘brigands [çetes] whose assaults on life, property and honour rendered the ministers guilty as co-perpetrators of the tragic crimes that resulted’.40

At the same time, the upper chamber of the Ottoman Parliament, the Senate, began debating the matter of investigating and prosecuting the wartime crimes. A motion was submitted by General Çürüksulu Mahmud, former minister of Public Works, who proposed in subsequent debate that investigation of the abuses be related to ‘the conduct of internal affairs policy (dahiliye siyaseti) and governance’.41 This tension between a focus on ‘bad governance’ and on the massacres themselves was to continue throughout the trials. The Ittihad was blamed for ‘hurting the interests of the nation and the country’ and, with the Armenians now pushing for independence, ‘for the wrong done to the integrity of the Ottoman Empire’.42

(p.86) Two inquiries were subsequently established in late November 1918: the Fifth Committee of the Ottoman Chamber of Deputies (Beşinci ube Tahkikat Komisyonu) and what was known as the Mazhar Inquiry Commission, headed by Hasan Mazhar.43 The Fifth Committee conducted hearings, during which ministers were interrogated. It also gathered key documents that demonstrated the collusion between the military and the executive in the genocide of the Armenians.44 The Mazhar Commission was established by the Sultan and charged with investigating the conduct of government officials. It gathered key documents, in particular telegraphic orders from twenty-eight provinces identified as centres of deportations and massacres.45 As Kevorkian notes, ‘Hasan Mazhar sent an official circular to the provincial prefects and sub-prefects, demanding the originals or certified copies of all orders received by the local authorities in connection with the deportation and massacre of the Armenians’.46 Local inquiry commissions were also established to aid regional trials. The results of all investigations were provided to the Courts-Martial.

(IV) The Ottoman State Special Military Tribunal

The Courts-Martial were established by Imperial authorization on 14 December 1918. Tribunals around the country were to be established ‘in accordance with the Regulations on Martial Law of 20 September 1877’.47 On 8 January 1919, the Extraordinary (or Special) Courts-Martial were declared operational.48 By mid-January 1919, the Mazhar Inquiry Commission forwarded 130 separate dossiers of suspects to the Courts-Martial. Its recommendation, following the Criminal Procedure Code, was that the evidence was incriminating enough to warrant the commencement of criminal proceedings against the suspects.49 The tribunal began its work on 12 February 1919. On 8 March 1919, the statute of the new Courts-Martial was introduced.50

(p.87) During its life the Courts-Martial underwent a number of changes: from a military-civilian to a military Courts-Martial, as well as changes to its staff, including a high turnover of judges.51 Grand Vizier Damad Ferid had put forward a proposal to include the participation of the neutral governments of Spain, Switzerland, Netherlands, Sweden and Denmark in the prosecution. This was not accepted, and in March 1919, the Courts-Martial went from being a military-civilian to a strictly military Courts-Martial.

The basis of legal proceedings was Ottoman law. The Courts-Martial prosecutors relied on the Ottoman Penal Code for the charges. The key charge was ‘deportation and massacre’. Although the charges came from the existing Penal Code, their application (to the charge of massacres of the Armenians) was new. One of the Courts-Martial’s chief aims was to establish the systematic manner in which the massacres of the Armenians took place, and to allocate institutional (primarily to the Ittihad Party) as well as individual responsibility. This is reflected in the organization of the trials. The indictment emphasized that ‘the investigation of massacres and illegal, personal profiteering, is the principal task of this Tribunal’.52 The main indictment as read by the Ottoman Attorney-General stated in part:

The principal subject matter of this investigation has been the event of the disaster befalling the deported Armenians—an event which occurred at various times and places. Legal steps are now being taken against individuals responsible for that occurrence. The disaster visiting the Armenians was not a local or isolated event. It was the result of a premeditated decision taken by a central body composed of the above-mentioned persons; and the immolations and excesses which took place were based on oral and written orders issued by that central body.53

The Ottoman State Special Military Tribunal focused on the massacres of the Armenians as well as on ‘illegal, personal profiteering’ and Turkey’s entry into the war. The charges of ‘overthrow of the government’ (added in April 1920), and ‘rebellion’ and ‘violation of public order’ were also included. Documents found by the investigatory Commissions, and the Courts-Martial, in particular coded telegrams sent by the main defendants outlining the actions to be taken against the Armenian population, were used as key evidence. Importantly, the trials were established and conducted around the view that the Armenians had been intentionally massacred. As noted by Dadrian, in all its verdicts, the Courts-Martial ‘sustained the charges relating to the destruction of the Armenians, pointing to evidence on “the organisation and implementation of the crime of murder (taktil cinayeti), by the leaders of Ittihad. This fact has been proven and verified (tahakkuk)”’.54

In fact, the court in the Yozgat trial rejected the Attorney-General’s wish to prosecute the accused under Article 56 of the Ottoman Penal Code, which pertains (p.88) to ethnic or other groups pitted against each other in mutual slaughter.55 It used instead Article 45, which distinguished between victims and perpetrators.56 Höss notes that not only did this preclude the prosecution of the general civilian population of Yozgat, but it demolished the myth that the Armenians were involved in an insurgency and that the massacres could be classified within the context of justifiable civil war.57

(V) The Operation of the Trials

The main trials were held in the building of the Ottoman Parliament in Istanbul, in the Great Hall of the Ministry of Justice. The official government gazette, Takvim-i-Vekâyi, published extracts daily and the proceedings, unusually, were public, in order, according to the presiding judge, ‘to demonstrate the intent of the Court to conduct the trials impartially and in a spirit of lofty justice [kemali adil ve bitaraf]’.58 He continued: ‘The court is simply trying to help the defendants and facilitate their defence.’59

Original estimates were that twenty-four trials were held; however, this has now been revised to at least sixty-three trials—with only some reported.60 Over 200 files had been prepared on individuals—government, military and Party officials alleged to be participants in the genocide—creating, together with the trial records, a substantial documentary record of the genocide. There were four main series of trials, within the framework of the Courts-Martial:

  • Ittihadist leaders and Central Committee members;

  • Ministers of the two wartime cabinets (these first two were merged after the sixty-three prisoners were taken by the British to Malta and Mudros in May 1919);

  • Responsible Secretaries and Delegates (who organized and supervised deportations) and those of the ‘Special Organization’ (who did the killings); and

  • Officials in provinces where the massacres took place.

(p.89) There were further trials ready to proceed, yet with the rise of the Nationalist Movement and the challenge to the Grand Vizier, these were abandoned. While some proceedings were in absentia, many indicted persons were present for the trials.

The Courts-Martial prosecutions focused on three classes of perpetrators:

  • The organizers of the genocide;

  • Those who carried out the perpetration in the provinces; and

  • Those involved in what were termed ‘economic crimes’.

Within those responsible for the genocide, the defendants were classified as either principal co-perpetrators (cabinet ministers, leaders of the Ittihad Party, Responsible Secretaries) or accessories (those who carried out the massacres, namely in the provinces).61 The series of trials that focused on the Ittihadist leaders, Central Committee members, and ministers of the two wartime cabinets is known as the Key Indictment, and ran from 28 April 1919 until 5 July 1919. This indictment of ‘principal co-perpetrators’ focused on the ministers of the two wartime cabinets and the leaders of the ruling Ittihad Party: Enver, Cemal and Talat. The indictment also focused on institutions: the Ittihad Party (particularly its Central Committee—namely Drs Nazim and Şakir), the General Assembly, and the two provincial control groups. The Defence Ministry, the War Office (particularly the Special Organization), and the Interior Ministry were also targeted. The Young Turk Ittihad Party’s objectives and methods were declared criminal by the Procuror-General.62 Dadrian notes that in this series of trials ‘the Court considers the investigation of these deportations and massacres as its “integral task” and not only premeditation and decision-making, but the organization, supervision, control, and implementation of genocide’.63 Further, it highlighted the secretive nature of the decision-making process, and ‘asserted that the deportations and massacres constituted a comprehensive attempt to radically solve the Armenian question (hall vefasl)’.64 Those on trial were shown to have operated both as cabinet ministers as well as being involved in directing the genocide.

The Indictment was also amended. According to Dadrian:

It refers to the crimes of ‘massacre’, ‘plunder of properties’, ‘torching of corpses and buildings’, ‘rape’, and ‘torture and torment’. The amendment also charges that these crimes were committed ‘in a particularly organised way…in the capital and in the provinces…repeated’. The preamble to the new indictment speaks of ‘the extermination of an entire people constituting a distinct community’, and of ‘the admission and confession’ of the defendants (kabul ve itiraf).65

Judgment in the Key Indictment was handed down on 5 July 1919. The Court found the cabinet ministers guilty both of orchestrating the entry of Turkey into World War I and of committing the massacres of the Armenians. Former leaders Talat, Enver, Cemal, Dr Nazim (and Dr Behaeddin Şakir in a separate prosecution on 13 January 1920) were found guilty of ‘first degree mass murder’66 and given the (p.90) death penalty in absentia.67 Other ministers were given prison sentences, including the former economics minister, and the former commerce and agriculture minister who received sentences of fifteen years each.

The Responsible Secretaries trial ran from 21 June until 13 July 1919, with thirty defendants. These were the officials of the Ittihad party who had organized the deportations. The majority had evaded arrest, with only eleven of the indicted on trial, and eighteen absent. The trial also included other officials. As Dadrian writes:

The centrepiece was the accusation that the defendants had gained control of the state apparatus and imposed upon the government their party objectives. They treated the Central Committee as the supreme instance for governmental decision-making. The special law on deportation was the result of this procedure. The deportees were ‘annihilated’ (imha) and their goods and properties ‘plundered and pillaged’ (nehb u garet) by brigands and gangs of outlaws engaged (terib) for this purpose.68

It is in the trial of the Responsible Secretaries that the meaning of the Deportation Law was most clearly demonstrated. The verdict found that the Responsible Secretaries ‘used the May 14/27, 1915 Temporary Deportation law…to perpetrate…massacre, plunder of goods, appropriation and hoarding of riches’.69 The verdict also found, as Dadrian relates:

The massacre and destruction of the Armenians and the pillage of their goods [were] organised and set in motion (tertip ve ihzar) by these Responsible Secretaries and Delegates. They relied on and engaged criminal gangs and mobs. Some of them tricked the victims and managed to appropriate their abandoned goods after pretending to be helping them.70

Yet the officials were viewed by the Court as ‘accessories to the crime’ and escaped any death penalty, with most found guilty of ‘robbery, plunder, and self-enrichment at the expense of the victims’.71

Trials that focused on the provinces were those of Trabzon,72 Yozgat, Harput, Erzincan, Bayburt, and Mosul.73 Other locational trials were being prepared when the Courts-Martial was dismantled, including those for atrocities against Armenians in Adana, Aleppo, Bitlis, Diarbekir, Erzerum, Marash, and Van.74 Three individuals were executed—all came from the trials of officials in provinces where the massacres took place. These were Nusret Bey, the Governor (Prefect) of Urfa, sentenced to death on 20 July 1920, Abdullah Avni, the officer in charge of the Erzincan gendarmery, executed on 22 July 1920, and Kemal Bey, district governor of Yozgat, executed on 10 April 1919.

Prior to the trials of the Ittihadist leaders, government ministers and Responsible Secretaries, the local officials responsible for the deportation in the district of Yozgat, (p.91) were put on trial. This was the first trial held by the Courts-Martial in Istanbul. In this district, which comprised the counties of Bogazhyan, Akdag Madeni and Yozgat, 31,147 of a total pre-war Armenian population of 33,133 in Yozgat district, who lived mainly in villages, were ‘deported’.75 Dadrian notes that ‘at the first trial of the series (February 5, 1919), the Attorney General disclosed that out of about 1,800 Armenians from the town of Yozgat proper, only eighty-eight survivors could be counted’.76

The Yozgat Officials trial ran from 5 February to 7 April 1919, in eighteen sittings. Mehmed Kemal (Kemal Bey), Mehmed Tevfik and Abdul Fayaz—all officials from Yozgat—were indicted. They were accused of the ‘mass murder of Yozgat’s Armenian deportees at Keller and elsewhere, the pillage and plunder of the victim’s goods, and the abduction and rape of many members of the convoys’.77 The offences, notes Höss, were termed ‘anti-human’.78 One witness spoke of ‘doing government business’.79 The Court heard testimony and received affidavits from Muslim leaders from the district as to the horrific means by which the Armenian population was slaughtered.80 They also heard from eighteen Armenian survivors. In an affidavit from Major Mehmet Salim, the Military Commandant of Yozgat, requested by the Mazhar Inquiry Commission, the point was stressed that ‘underlying the entire scheme of deportations lay “a policy of extermination” (imha siyaseti)’.81 The verdict emphasized that ‘[t]‌heir handwritten documents confirm the nature of the real purpose of these guards [the so-called escorts of the deportee convoys]—the massacre of the people of these convoys’.82 In his analysis of the judgment, Dadrian writes:

Perhaps the most important feature of the Verdict was its conclusion that the deportations were a cloak for the intended massacres. ‘There can be no doubt and no hesitation’ on this point, it declared in that conclusion (şüphe ve tereddiit birak- madigindan).83

On 8 April 1919 Mehmed Kemal, who had been sub-district governor of Bogazliyan and subsequently interim district governor of Yozgat, was convicted of ordering the robbery and murder of Armenians and sentenced to death under Article 170 of the Ottoman Penal Code, which prescribes death for the crime of premeditated murder. His sentence was carried out in Istanbul’s Beyazit Square on 10 April 1919.84

While there had been public statements in the Parliament and the media as to the nature of the massacre of the Armenians, and condemnation of it, the wider population seemed reluctant to accept the legal process and its verdicts.85 This reflected the (p.92) schism in the Ottoman state between support for the Ittihad party and the desire to create distance from it and its actions. The execution and subsequent funeral of Mehmed Kemal turned into a large-scale nationalist demonstration, where anti-British and anti-occupation slogans were heard, and wreaths reading ‘Kemal Bey, the Great Martyr of the Turks’ were laid, and after which 20,000 Turkish pounds were raised for his family.86

(VI) The Record of the Trials

While short lived, these trials created an important legacy for the prosecution of genocide and, critically, provided a further source of documentation on the genocide of the Armenians. The trials also reflected on a state’s own acts against its civilians, and ones it had not usually protected. As Dadrian notes, ‘[f]‌or the first time, Ottoman-Turkish authorities of the highest rank were being held accountable for their crimes against these [non-Muslim] nationalities’.87

There is, in these trials, an official acknowledgement of the harms perpetrated. The indictment began: ‘The principal subject matter of this investigation has been the event of the disaster befalling the deported Armenians—an event which occurred at various times and places.’88 The Courts-Martial subpoenaed documents that provided evidence of the policy to annihilate the Armenians as a people, and of the chain of command that implemented this policy. It was this evidence of state crime that makes these trials so important as a record; the trials demonstrated how the genocide of the Armenians was a coordinated and deliberate policy of the ruling Young Turks. As Kirakossian outlines, ‘the most important conclusion arrived at as a result of the investigation [by the Courts-Martial] was that the crimes inflicted upon the Armenians in various places and at various times, were not isolated events’.89

The trials also showed how this policy was transmitted to the provinces by Talat, Enver and Kemal through telegram orders, and how what was known as the ‘Special Organization’, the Teshkilat-i Mahsoosé, was specifically established to carry out the massacres. These included, outlined in the indictment, a telegram sent by Talat to the administrative heads of provinces where Armenians were massacred, ordering that ‘the bodies of the dead remaining on the roads not be thrown into ravines, rivers or lakes, and instead be interred and their remaining possessions burnt’.90 A further telegram sent by Behaeddin Şakir to Sabit Bey, Governor-General of the vilayet of Kharput, reads as follows: ‘Are the Armenians shipped from there exterminated? And are the dangerous persons about whose deportation you have informed me indeed been destroyed or simply deported? My brother, give me accurate information’.91

(p.93) Evidence gathered by the Courts-Martial pointed to clear coordination and intent. At the Yozgat trial, in a session on 22 February 1919, the prosecutor introduced twelve cipher telegrams that demonstrated the word ‘deportation’ meant ‘massacre’.92 According to Dadrian, ‘[t]‌his critical piece of evidence was confirmed by Colonel Halil Recayi, who during the course of his testimony at the 7th sitting (February 18) explicitly admitted that he had received from Colonel Şahabeddin cipher telegrams about the killing operations and that “deportation” in fact meant “massacre” (kesim)’.93 Dadrian records that ‘[t]he testimony of Colonels Şahabeddin and Recayi, and others, the Attorney General concluded, confirmed the organised nature of the Yozgat mass murder’.94

The Key Verdict against the cabinet ministers and CUP leaders found that:

The evidence shows that the crimes of massacre which occurred in Trabzon, Yozgad, and Boğazlıyan, and which were verified as a result of the trials that were held in the Military Tribunal, were ordered, planned and carried out by persons found among the leadership of the CUP. Furthermore, as was presented during the defence[’s case], [although] there were those who became aware of the crimes after their occurrence, the[-se persons] made no effort whatsoever to prevent their repetition or stop the perpetrators of the previous crimes.95

The indictment, based on the documentary evidence the Courts-Martial had already received from the investigating committees, stated, in part:

July 1914…immediately after the military movements Talaat, Enver and Jemal put their secret plans into operation. They formed Teshkilat-i Mahsoosé composed of criminals released from jail who constituted the ‘core of the gang acting on special orders and instructions’. Prior to the mobilisation it was rumoured that the gangs were to participate in the war…However, there is incontrovertible evidence that they were formed to massacre the Armenians [Takvim-i-Vekâyi, April 2, 1919, N 3604].96

The Tribunal also identified isolated incidents where the orders were disobeyed, as with the case of Mazhar Bey, the vali of Ankara who replied to orders from Atif Bey, ‘No, Atif Bey, I am a governor, not a criminal. I give you my post, execute it yourself.’97 The trials showed the consequences of disobedience—as noted by Dadrian, in the trial of the Responsible Secretaries, ‘in at least three cases provincial Responsible Secretaries had been able to effect the dismissal of governors who resisted orders for massacres’, with one denounced as ‘the protector of the Armenians, or more accurately…the governor-general of the infidels’.98

Many documents, however, were destroyed. Kirakossian relates that ‘in the course of the investigation [by the Courts-Martial] it became obvious that most important material of the activity of the [Special] Organization and all the documents of the (p.94) Central Committee had been stolen’.99 Documents were burned and taken out of Turkey.100

(VII) Acknowledgement of Genocide

In the official indictment and the mandate of the Courts-Martial there is clear acknowledgement of the planned massacres of the Armenians. This acknowledgement was supported by media and parliamentary debate at the time. As Kirakossian notes, with the signing of the Armistice and the resignation of Talat Pasa’s government, ‘criticism of the Young Turks became the chief theme in the Turkish press’.101 One newspaper, Inkilab, demanded the dissolution of the Majlis, the Parliament: ‘It is impossible to appear before humanity and civilization hand in hand with those who had worked with the organisers of the Armenian massacres’.102 Another, Sabah, wrote:

There is no way to renounce the reality we face today, a reality of endless misery and wretchedness. The government of Said Halim and Talaat nursed in their accursed hearts a horrible plan: using the excuse of war to deport the Christians, and especially the Armenians, from one province into another, to the Arabian desert, and in the course of deportation with unspeakable, cannibalistic methods not even known in the middle ages or in the centuries that followed murder not only grown-up men or boys of tender years, but also infants, women, old men—to finally destroy and extinguish the Armenian race…Talaat Bey, Minister of the Interior, gives orders and instructions from the Centre, organises gangs and sends them to the provinces. The Ittihad Centre sends its members like Drs Nazim and Shakir to Erzerum, Trebizond and other places as extraordinary plenipotentiaries to confer with Hasan Tahsim and Jemal Azmi. As a result—outrages, methodically planned atrocities and massacres conducted with the assistance of lawless elements and criminals specially released from jail for the purpose.103

With the establishment of the main trial, there was, as Dadrian and Akçam relate, intense press coverage: ‘headlines in the Turkish press included such terms as “Historical Day”, “Historical Judgment”, and “Incredible Indictment”’.104

Immediately post-war, there was clear recognition of what had been done to the Armenians. At the end of the war, in his opening speech to the Ottoman Senate on 19 October 1918, the President, Senator Ahmed Riza, invoked the memory of ‘the Armenians who were savagely murdered’.105 Two days later, when challenged on this, he described the mass murder of the Armenians as an ‘officially’ (resmen) (p.95) sanctioned ‘state’ crime (devlet eliyle) requiring ‘some kind of intervention’ by the authorities.106 This recognition even extended to when the Kemalists came into power, once the Courts-Martial had been dissolved.

The testimony recorded in the transcripts of these trials provides an important record of state complicity in the genocide of the Armenians. These corroborate eyewitness testimony from consular officials present in Turkey during the war. US Ambassador Henry Morgenthau noted in his memoir the candid conversations that Turkish officials had with him:

The real purpose of the deportation was robbery and destruction; it really represented a new method of massacre. When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant to a whole race; they understood this well, and in their conversations with me, they made no particular attempt to conceal the fact.107

German Ambassador Metternich wrote in a dispatch in July 1916, one of many written by the three German Ambassadors in Turkey throughout the war, despite their military allegiance: ‘The Turkish government inexorably carried out her plans, namely, the resolution of the Armenian question through the destruction of the Armenian race’.108 The former Italian Consul-General in Trebizond, one of the sites of the genocide, wrote of:

the ruthless searches through the houses and in the countryside; the hundreds of corpses found every day along the exile road; the young women converted by force to Islam or exiled like the rest; the children torn away from their families or from the Christian schools, and handed over by force to Moslem families, or else placed by hundreds on board ship in nothing but their shirts, and then capsized and drowned in the Black Sea and the River Deyirmen Deré—these are my last ineffaceable memories of Trebizond, memories which still, at a month’s distance, torment my soul and almost drive me frantic.109

American media reports of the massacres occupied the front page in the New York Times and other newspapers.110 The German missionary, Dr Johannes Lepsius, who was present in Turkey as head of the Deutsche Orient-Mission from 1915 until 1917, documented the genocide, publishing a confidential albeit circulated report that gathered together eyewitness accounts. Historian Arnold Toynbee observed, in the Blue Book account published by the British government in 1916, organized by member of the House of Lords Viscount Bryce and based on eyewitness accounts, ‘[i]‌t was a deliberate, systematic attempt to eradicate the Armenian population throughout the Ottoman Empire, and it has certainly met with a large measure of success’.111 Statements of the atrocities perpetrated based on eyewitness (p.96) accounts of many diplomats stationed in Turkey at the time can also be found in government archives.112

Yet with the political turmoil in the wake of the war, and the eventual change of government, this acknowledgement turned to denial. The authoritative voice of law was subverted. Those convicted were held up as martyrs. What had the potential to shape the nation turned into a different kind of nation building. New borders of memory were established, and the past thereby eliminated. It was a failed foundational moment.

(VIII) Political Context of the Trials

The Courts-Martial operated in a period of great internal turmoil. The Ittihad Party had been defeated, yet continued to operate insurgently. Further, the Civil Service and the Ministries of War, Interior and Justice, together with the offices of the Istanbul Police, were dominated by Ittihadists and actively impeded the work of the Tribunal, including aiding the escape of some prisoners.113 The enthusiasm for holding the trials, and arresting suspects, was mixed. With one key escape early on in the trials, that of Dr Reşit Bey, who had been the governor of Diyarbekir and oversaw the deportation of the Armenians from that province, a special session of the Chamber was called. The President, Ahmet Riza Bey, convened the session in the upper house to debate ‘the need for an Imperial Council to end government indolence, conduct a house-cleaning in the cabinet and give the Sultan some necessary warnings’.114 Meanwhile, in some provinces, progress was slow, with one investigating magistrate in Trebizond noting in March 1919, ‘[n]‌one of my efforts and none of the work I did produced results’.115

The change of Grand Vizier from Tevfik Pasa to Damat Ferid Pasa sped up the trials. As Kevorkian notes, ‘it was under his government that the Young Turks began to be called to account for their deeds, that arrests were made with greater and greater frequency, and that the Ittihadist organisations were challenged’.116 More suspects were arrested (Ferid Pasa was more willing than his predecessor to accept lists of suspects from the British), and the first trial was concluded. The Grand Vizier was to declare that the government’s aim was ‘[t]‌o show the Victorious Powers that we are opposed to the policies of the Union and Progress Party, to punish the war criminals, to eliminate some of those persons loyal to the CUP from the bureaucracy’.117 There was also a sense that holding the trials was politically pragmatic. Internally, it (p.97) would further discredit the Ittihad Party, and externally, the Allies would perhaps see that responsibility lay with the Young Turk leadership, not the Turkish people as a whole. The newspaper Alemdar wrote:

The only thing that would help us is to cry all over the civilised world that we will really and actually exercise justice over the guilty. If Baghdad Square will not witness the gallows of the criminals, then Paris [ie the Peace Conference] will become the place of judgement of our state and nation.118

In fact, Mehmed VI, the newly appointed Sultan after the war, had, in an interview with a British correspondent, specifically asked that the following statement be published: ‘The great majority of the nation is entirely innocent of the misdeeds attributed to it. Only a limited number of persons are responsible.’119

In establishing the Courts-Martial, the Sultan’s government had thus hoped that it would demonstrate that it was the Ittihadist Party, not the Turkish nation, that was responsible for the Armenian massacres, and that the Allies would be lenient at the Peace Conference.120 It was therefore critical that the trials establish the systematic manner in which the massacres of the Armenians took place, and allocate institutional and as well as individual responsibility. The Courts-Martial also operated as an attempt at consolidation of power by the Sultan and of marginalization of the Ittihad Party.

Political instability continued throughout the duration of the Courts-Martial. Trials were halted on 17 May 1919 due to the Greek occupation of Smyrna and then resumed on 3 June. In the meantime, sixty-four prisoners were removed by the British to the islands of Mudros and Malta, and forty-one prisoners were released by the Ottoman government. The Kemalists, led by Mustafa Kemal who was to be the leader of the new republic of Turkey, were on the ascendancy, in part fuelled by events such as the occupation of the coastal port of Smyrna by Greece and the occupation of Istanbul by the British. Damat Ferid Pasa resigned in September 1919, resulting in a slower pace to the prosecutions again, with trials deferred, including a prohibition on Armenians returning to their former homes. When Parliament began sitting on 12 January 1920, almost all of the new deputies were connected to the emerging Nationalist Movement, leading to a strong challenge in Parliament to the trials.121 In the face of this Nationalist challenge, and the inability of the Allies to proceed with partition, the British made the decision to occupy Istanbul, which they did on 16 March 1920. The Ottoman Parliament went into recess and a new Parliament was convened in Ankara, in direct challenge to the Ottoman Parliament and the leadership of Damat Ferid Pasa.122

(p.98) (IX) Demise of the Courts-Martial

The ascendancy of Kemalism meant the demise of the Courts-Martial. With the Treaty of Sèvres and the occupation of Istanbul by the British, the Kemalists no longer tolerated the Courts-Martial trials. As Willis notes, the occupation by Greece of Smyrna on 15 May 1919 (allowed by the Council of Four) raised fears that the Allies favoured permanent territorial annexations by Greece, the ancient enemy of Turkey.123 This further galvanized the Nationalist Movement led by Mustafa Kemal against the government of Damad Ferid. It is said to have led in part to the British taking those in custody to Malta. The Kemalists eventually overthrew the Sultan’s government in October 1920 and ended the prosecutions for the genocide of the Armenians.

As the process of supplanting the Sultan’s government and law proceeded, the Courts-Martial became irrelevant. The British occupation of Istanbul led to the end of Ferid’s government and a stronger political centre in Ankara led by the Nationalists. On 29 April 1920, a bill was introduced in the new Kemalist National Assembly in Ankara to declare the official decisions and decrees of the Sultan’s Istanbul government null and void. On 7 June 1920, the Ankara government enacted Law No. 7, which declared the Istanbul government, its treaties and agreements, invalid as of 16 March 1920, when the Allies formally occupied the city and assumed full control of it. On 11 August 1920, the new Kemalist government in Ankara dissolved the Courts-Martial involving ‘proceedings concerning the deportations’,124 a dissolution that became effective in October 1920 with the demise of Damad Ferid’s cabinet. The President of the Courts-Martial and three other members were arrested on 14 November for ‘irregularities’ involving Nusret’s death sentence, and on 10 December 1920 the new President began to release prisoners.125 On 3 January 1921, the Kemalist Ankara government decided to have its Independence Court supplant the Courts-Martial in the judgment of the crimes committed in Yozgat (Ankara province). On 13 January 1921, the full Courts-Martial were abolished. On 25 April 1922, the last cabinet of the last Grand Vizier was impelled by the Kemalists to declare military tribunals incompetent to try ‘nationalists’, meaning adherents of Kemalism.126 On 11 July 1922, it was reported in Tercüman-ı Hakikat, a daily newspaper, that the government had abolished the Courts-Martial.

On 31 March 1923, a general amnesty was announced for all those convicted by the Courts-Martial as well as by civilian courts.127 The Military Appeals Court overturned the 20 July 1920 verdict of the former Governor of Baiburt, Nusret and declared both Nusret (found guilty and executed in the Baiburt trial) and Kemal (found guilty and executed in the Yozgat trial) ‘national martyrs’. On 25 (p.99) December 1920, the Ankara regime enacted Law No. 80/271, allocating a pension for the family of Nusret. On 14 October 1922, Mehmed Kemal, executed on 10 April 1919 in the Yozgat trial, was proclaimed a ‘National Martyr’ by special legislation enacted by the Turkish Grand National Assembly in Ankara.128 The Grand National Assembly held a ten-minute silence to honour the memory of Nusret, naming a region, a school, and a street in Urfa after him, and a statue of Kemal was erected in the public square of Bogazhyan.129

When the Grand Vizier was called to present Turkey’s case before the Council of Ten on 17 June 1919, he asked for clemency for Turkey, arguing that ‘the great trial of the Unionists at Constantinople has proved the responsibility of the leaders of the Committee [for war crimes committed]’.130 His appeals, however, were rebuffed.131 His request a short time later to the Allies to force the Germans to extradite Enver, Talât, and Djemal (Cemal) to Turkey was also denied.132

(X) Conclusion

The Special Military Tribunal established by the Ottoman state at the end of World War I, the Courts-Martial, provided a record of the genocide of the Armenians. In its use of extensive documentary materials and interrogation of key participants, it provided evidence of the manner in which the genocide was perpetrated. Following the tradition of the Ottoman state in establishing court-martials, it drew on established law to address the massacres perpetrated and associated crimes and clearly addressed them as a crime of state. In one trial, a witness spoke of ‘doing government business’, and in others, ministers and officials gave evidence that ‘deportation’ in reality meant ‘annihilation’.

The trials were in many ways a pragmatic political response to the situation in which Turkey found itself in the wake of World War I, particularly the threat of harsh sanctions. They also located the genocide of the Armenians amongst other crimes such as bad governance and misappropriation of property. It was hoped that a response to the massacres would bring some lenience and that this would also solidify the government in a time of political turmoil. As such, the trials can be viewed as a project of nation-building and an attempt to establish the parameters of the post-war Ottoman state. These efforts were impeded by Allied incursions into Turkey, by a civil service that attempted to boycott the trials, and overall by an extremely fragile internal political situation. Despite this, the trials provided a record and, critically, recognition of the genocide orchestrated by the Ottoman state. While it only succeeded in a few actual sentences that were not in absentia (which resulted in strong criticism from the Armenian press), it created an official (p.100) record of the genocide, one that was mirrored by political and media commentary at the time.

The record of these trials, however, was actively buried by the new Turkish state. They have been largely hidden for years, resurrected mainly by a few scholars with some access to the archives. Many documents have been destroyed, and the archive is still largely closed. This has supported Turkey’s insistence for years that the genocide did not happen. Yet despite these trials being actively hidden by Turkey, the record of law is something that remains—both to counter the denial and to provide a record of the genocide. It is a hidden story that can be resurrected. Law produces records. It is the legitimacy of law, even in fragile political times, that creates public and authoritative records and acknowledgement.

The Courts-Martial also show the limitations of law—particularly as a record of history—when this history has been submerged under new nationalist priorities, such as those of modern-day Turkey. Despite the clear and official acknowledgement of the genocide provided by the post-war government and as found in the trial verdicts, denialism has prevailed. The story of both the trials and the genocide has largely remained hidden. Yet that the records of these trials exist, albeit fragmented (it is unclear as to how much was destroyed by Turkey), allows for the record to be upheld. This account provided by law provides some level of accountability. While the political can subvert the legal record, the legal record remains.

Notes:

(1) The new Bangladeshi government passed an Act to ‘provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law’ (International Crimes (Tribunals) Act 1973). Special tribunals were established to try Bangladeshi citizens who had collaborated with the Pakistani armed forces. National prosecutions commenced at the end of January 1972, under the Bangladesh Collaborators (Special Tribunals) Order: International Crimes (Tribunal) Act 1973. A tribunal comprising Bangladeshi Supreme Court justices was constituted. These proceedings are now being resurrected. See further, Bina D’Costa and Sarah Hossein, ‘Redress for Sexual Violence before the International Crimes Tribunal in Bangladesh: Lessons from History, and Hopes for the Future’, Criminal Law Forum, 21 (2010), 331–59.

(2) The first decree passed by the new People’s Revolutionary Council of Kampuchea after the overthrow of the Khmer Rouge by Vietnam in 1979 was Decree-Law No 1, ‘providing for the setting up in Phnom Penh of a People’s Revolutionary Tribunal to judge the genocide crimes committed by the Pol Pot-Ieng Sary clique’: International Covenants on Human Rights, Letter dated 4 October 1979 from the Permanent Representative of the Socialist Republic of Vietnam to the United Nations addressed to the Secretary-General, UN Doc.A/C.3/34/1, New York: United Nations, 1979. The former Prime Minister Pol Pot and his deputy Ieng Sary were tried in absentia and found guilty of genocide by the Revolutionary People’s Tribunal of the People’s Republic of Kampuchea. See People’s Revolutionary Tribunal, Held in Phnom Penh for the Trial of the Crime of Genocide Committed by the Pol Pot-Ieng Sary Clique, Ministry of Information, Press and Cultural Affairs of the People’s Republic of Kampuchea, Phnom Penh, August 1979.

(3) The 1881 Inquiry was established by Victoria’s Chief-Secretary. The nine commissioners sat for two and a half months. Twenty-one of the sixty-nine witnesses who were examined were Aboriginal. This story has been resurrected recently through the Minutes of Evidence project, an Australia Research Council collaboration between the University of Melbourne and artists, researchers, education experts and community members to promote new modes of publicly engaging with historical and structural injustice through performance, education and research, including the verbatim theatre production Coranderrk: We Will Show the Country which uses the record of this inquiry. See further at <http://minutesofevidence.com/> and Jennifer Balint , Julie Evans, Nesam McMillan, Giordano Nanni and Melodie Reynolds, ‘The Minutes of Evidence Project: Creating Collaborative Fields of Engagement with the Past and Present’, in Lynette Russell and Leigh Boucher (eds), Governance, Race and the ‘Aboriginal Problem’ in Colonial Victoria 1851–1900, (forthcoming: Aboriginal History Inc. and ANU E Press, 2013).

(4) Justice Crispin of the Australian Capital Territory Supreme Court found, in proceedings initiated by members of the Aboriginal Tent Embassy (Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe): ‘There is ample evidence to satisfy me that acts of genocide were committed during the colonisation of Australia’: Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9. See further, Jennifer Balint, ‘Stating Genocide in Law: The Aboriginal Embassy and the ACT Supreme Court’, The Aboriginal Tent Embassy: Sovereignty, Black Power, Land Rights and the State, in Gary Foley, Andrew Schaap and Edwina Howell (eds) (Routledge, 2013).

(5) The Turkish government has sent out reams of books and pamphlets countering the genocide, as well as financing public propaganda campaigns and funding (and disrupting) research. See Richard G. Hovannisian, ‘The Armenian Genocide and Patterns of Denial’, in Richard G. Hovannisian (ed), The Armenian Genocide in Perspective (New Brunswick and London: Transaction Publishers, 1998), 111–33; Roger Smith, ‘Denials of the Armenian Genocide’, in Israel W. Charny (ed), Encyclopedia of Genocide (Santa Barbara, CA: ABC-CLIO 1999), 161–6. Smith relates how a conference in Tel Aviv was disrupted in 1982 with threats to the safety of Jews in Turkey: Roger W. Smith, Eric Markusen and Robert Jay Lifton, ‘Professional Ethics and the Denial of the Armenian Genocide’, Holocaust and Genocide Studies, 9 (1995), 1–22. When I was an undergraduate student studying genocide in the early 1990s with Professor Colin Tatz at Macquarie University in Sydney, Australia, there were more books produced by Turkey denying genocide than scholarly works on the genocide itself, and the Turkish government also sent an emissary to one of my tutorials to ‘counter’ what we were taught about the genocide.

(6) Vahakn Dadrian points out, as verified by documents presented to the Tribunal as well as Ottoman census sources, that 61,000 members of the 63,605-strong Armenian community in Ankara were deported, despite Ankara being the ‘farthest removed from all war zones’: Vahakn N. Dadrian, ‘A Textual Analysis of the Key Indictment of the Turkish Military Tribunal Investigating the Armenian Genocide’, Journal of Political and Military Sociology, 22 (1994), 135–6.

(7) Takvim-i-Vekâyi, 3540: Dadrian cited above n 6, 136.

(8) Evidence given included, in the first trial held at the Courts-Martial, a cipher telegram of 14 July 1915 from Colonel Şahabeddin addressed to Colonel Recayi in Ankara, stating that ‘there was no evidence whatsoever’ about any uprising being planned (hig bir delail olmadigi) (2nd sitting, 8 February 1919). See Vahakn N. Dadrian, ‘The Turkish Military Tribunal’s Prosecution of the Authors of the Armenian Genocide: Four Major Courts-Martial Series’, Holocaust and Genocide Studies, 11 (1997), 36.

(9) These include the statements by author Orhan Pamuk in 2005 that a million Armenians had been killed (which saw him prosecuted for ‘insulting Turkishness’), the translation into Turkish of Vartkes Yeghiayan, British Foreign Office Dossiers on Turkish War Criminals (which contains the case information on suspected war criminals compiled by the British), and the publication by lawyer Fethiye Çetin in 2008 of her memoir My Grandmother (New York, NY: Verso, 2008) that revealed that her grandmother had been Armenian, and the subsequent publication of gathered stories of Armenians in Turkish families, published as The Grandchildren (Fethiye Cetin and Ayse Gül Altinay, Istanbul: Metis, 2009). See Maureen Freely, ‘Secret Histories’, Index on Censorship, 39 (2010), 14–20.

(10) See Rouben Paul Adalian, ‘International Recognition of Armenian Genocide’, in Israel W. Charny (ed) Encyclopedia of Genocide, Vol 1 (Santa Barbara, CA: ABC-CLIO, 1999), 100–1.

(11) Annette Höss, ‘The Trial of Perpetrators by the Turkish Military Tribunals: The Case of Yozgat’, in R.G. Hovannisian (ed) The Armenian Genocide: History, Politics, Ethics (New York, NY: St Martin’s Press, 1992), 221, fn 5. Further, as Dadrian notes, outside Turkey only the Jerusalem Armenian Patriarchate Archive and the Nubar Library in Paris own the originals of these ‘supplement’ issues: Dadrian, above n 7, 30. Kirakossian also notes that the French newspaper La Renaissance published in Constantinople also published materials of the sessions: John S. Kirakossian, The Armenian Genocide. The Young Turks Before the Judgment of History (Madison, CT: Sphinx Press, 1992), 162.

(12) Taner Akçam, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, transl Paul Bessemer (New York, NY: Metropolitan Books New York, 2006), 5–6.

(13) See in particular, Dadrian: above n 7, 28–59; The History of the Armenian Genocide. Ethnic Conflict from the Balkans to Anatolia to the Caucasus (Oxford and New York, NY: Berghahn Books, 3rd edn, 1997); ‘The Documentation of the World War I Armenian Massacres in the Proceedings of the Turkish Military Tribunal’, International Journal of Middle East Studies, 23 (1991), 549–76. In 2008, Vahakn N. Dadrian and Taner Akçam, Tehcir ve Taktil: Divan-i Harb-i Orfî Zabitlari. Ittihad ve Terakki’nin Yargilanmasi, 1919–1922 was published in Turkish by Bilgi University Press. This is the first major book devoted to the trials. An English language edition was published in late 2011: Vahakn N. Dadrian and Taner Akçam, Judgment at Istanbul. The Armenian Genocide Trials (Oxford and New York, NY: Berghahn Books, 2011). Other work includes Taner Akçam’s A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility (New York, NY: Henry Holt and Company); Raymond Kévorkian’s The Armenian Genocide: A Complete History (London and New York, NY: I.B. Tauris, 2011) which includes a section on the trials, John S. Kirakossian, above n 13; Annette Höss, ‘The Trial of Perpetrators by the Turkish Military Tribunals: The Case of Yozgat’, in R.G. Hovannisian (ed), The Armenian Genocide. History, Politics, Ethics (New York, NY: St Martin’s Press, 1992), J.F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Westport, CT: Greenwood Press, 1982). Vartkes Yeghiayan has collated two sets of documents: the British case notes on suspected Turkish war criminals—British Foreign Office Dossiers on Turkish War Criminals (La Verna, CA: American Armenian International College Press, 1991), and the translation of the Courts-Martials transcripts—The Armenian Genocide and the Trials of the Young Turks (La Verna, CA: American Armenian International College Press, 1990).

(14) R.G. Hovannisian, ‘The Historical Dimensions of the Armenian Question, 1978–1923’, in R.G. Hovannisian (ed), The Armenian Genocide in Perspective (New Brunswick and London: Transaction Publishers, 1986), 28.

(15) Hovannisian, above n 15.

(16) See Dadrian, ‘The Documentation of the World War I Armenian massacres’, above n 14, 550.

(17) Robert Melson, ‘Provocation or Nationalism: A Critical Inquiry into the Armenian Genocide of 1915’, in R.G. Hovannisian (ed), The Armenian Genocide in Perspective (New Brunswick and London: Transaction Publishers, 1986).

(18) Richard G. Hovannisian, ‘The Armenian genocide’, in Israel W. Charny (ed), Genocide: A Critical Bibliographic Review (New York, NY: Facts on File Publications, 1991), 95; Vahakn N. Dadrian, ‘Documentation of Armenian Genocide in Turkish Sources’, in Israel W. Charny (ed) Encyclopedia of Genocide, Vol 1 (Santa Barbara, CA: ABC-CLIO, 1999), 94.

(19) Hovannisian, above n 19, 95.

(20) See Vahkhn N. Dadrian, ‘The Role of Turkish Physicians in the World War One Genocide of Ottoman Armenians’, Holocaust and Genocide Studies, 1 (1986), 169–92.

(21) Cited in John S. Kirakossian, The Armenian Genocide, above n 11, 169.

(22) Henry Morgenthau, Ambassador Morgenthau’s Story (London: Gomidas Institute, 1918), 321–2.

(23) On this, see Dadrian, The History, above n 13, 221.

(24) Dadrian and Akçam, Judgment at Istanbul, above n 13, 315–16.

(25) Dadrian, The History, above n 13, 236.

(26) Dadrian, above n 25, 223.

(27) See further, Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (London: Routledge-Cavendish, 2012), in particular Chapter 2.

(28) Cited in Dadrian, The History, above n 13, 216. The first draft, proposed by Russia, contained the phrase ‘crimes against Christianity and civilisation’, but it was changed to ‘crime against humanity and civilisation’ by France in light of the Muslim populations in the French colonies: see Ulrich Trumpener, Germany and the Ottoman Empire (Princeton, NJ: Princeton University Press, 1968), 210, fn 26.

(29) The Treaty Of Peace Between the Allied and Associated Powers and Turkey Signed at Sèvres, 10 August 1920, Armenian News Network[website], < http://www.groong.com/treaties/sevres.html> (accessed 27 February 2013).

(30) Akçam, above n 13, 215.

(31) Cited in Akçam, above n 13i, 216–17.

(32) Akçam, above n 13, 211–13.

(33) See Akçam, above n 13, 233–4.

(34) Willis, above n 13, 162.

(35) See Akçam, above n 13, 239.

(36) Akçam, above n 13, 362.

(37) Cited in Willis, above n 13, 163.

(38) Kirakossian, above n 11, 160, 162.

(39) Dadrian, The History, above n 13, 319.

(40) Dadrian, The History, above n 13.

(41) Dadrian, The History, above n 13, 337, fn 11.

(42) Session of Military Tribunal 8 March 1919, cited in Kirakossian, above n 11, 171.

(43) Mazhar had been the governor of Ankara who had been dismissed from his position in 1915 for refusing to obey Talat’s orders to deport the Armenians: Session of Military Tribunal 8 March 1919, cited in Kirakossian, above n 11, 160.

(44) See further, Raymond Kevorkian, The Armenian Genocide: A Complete History (London and New York, NY: I.B. Tauris, 2011), 725–33.

(45) See further Kevorkian, above n 44, 735–8.

(46) See further Kevorkian, above n 44, 4.

(47) Dadrian and Akçam, Judgment at Istanbul, above n 13, 254.

(48) According to Kevorkian, three courts-martial were established in Istanbul, as well as in ten jurisdictions in the provinces. In Istanbul, Court-Martial 1 tried people accused of committing crimes against the Armenian population, Court-Martial 2 specialized in cases involving the illegal seizure of assets, and Court-Martial 3 judged senior officers: Kevorkian, above n 44, 739–40.

(49) Dadrian, The History, above n 13, 320–1.

(50) There was debate in the Parliament, the press, and during the first two sittings of the military tribunal, as to whether the defendants should be prosecuted before the High Court, before the Military Tribunal, or regular criminal courts. It was concluded that as martial law as implemented by the Ittihadists on 12/25 April 1909 was still in force (and according to Article 113 of the Ottoman Constitution this meant that civil laws are suspended), the Courts-Martial were the only option.

(51) See Dadrian, above n 8, 31–2.

(52) Takvimi Vekâyi, No. 3540, cited in Dadrian, The History, above n 13, 324.

(53) H.K. Kazarian, ‘Turkey Tries its Chief Criminals: Indictment and Sentence Passed Down by Military Court of 1919’, The Armenian Review, 24 (1971), 10.

(54) Takvimi Vekâyi, No. 3604, cited in Dadrian, ‘The Documentation of the World War I Armenian Massacres’, above n 13, 556.

(55) The claim by the Prosecutor that the Armenians bore guilt for the treatment they received resulted in the walking out of the three Armenian lawyers representing the victims: Dadrian, above n 9, 34–5.

(56) Dadrian, above n 9, 39.

(57) See Höss, above n 11, 220.

(58) Takvimi Vekâyi, No. 3540, cited in Dadrian, The History, above n 14, 322. This was to later change.

(59) Dadrian, ‘The Documentation of the World War I Armenian massacres’, above n 13, 555.

(60) See Dadrian and Akçam, Judgment at Istanbul, see above n 13, 202. Akçam notes that while twelve of the trials were documented in Takvim-i-Vekâyi, these were recorded in different ways—some were complete or partial records of the trials such as the indictments, minutes and verdicts, and others solely through the Sultan’s confirmation of the Court’s sentence: Akçam, above n 13, 288. It also appears that there were a number of military tribunals operating at the same time in this early stage—necessitating that the main Tribunal, responsible for the ‘deportation cases’, be known as the ‘First Military Tribunal’: Akçam, above n 13, 285.

(61) Dadrian, The History, above n 13, 327.

(62) Dadrian, The History, above n 13, 323.

(63) Dadrian, above n 8, 44.

(64) Dadrian, above n 8, 44–5.

(65) Dadrian, above n 8, 46.

(66) Dadrian, above n 8, 50.

(67) Willis, above n 13, 156. In 1921, Talat was assassinated in Berlin—in his defence, the perpetrator Soghomon Tehlirian argued that he had been sentenced to death in absentia by the Tribunal: Kirakossian, The Armenian Genocide, above n 11, 171.

(68) Dadrian, above n 8, 42.

(69) Dadrian, above n 8, 43.

(70) Dadrian, above n 8, 43–4.

(71) Dadrian, above n 8, 44.

(72) For a discussion of this trial, held between 26 March and 17 May 1919, see Dadrian, above n 8, 39–42.

(73) For an account of these trials see Kevorkian, above n 44, 791–5.

(74) Höss, above n 11, 210.

(75) Dadrian, above n 8, 33.

(76) Dadrian, above n 8, 33.

(77) Höss, above n 11, 213.

(78) Höss, above n 11, 213.

(79) Höss, above n 11, 220.

(80) See Dadrian, above n 8, 36–8.

(81) Dadrian, above n 8, 37.

(82) Höss, above n 11, 218.

(83) Dadrian, above n 8, 39.

(84) Mehmed Tefkik was sentenced to fifteen years’ hard labour as an accessory. Abdul Fayaz had earlier been removed from the trial for a proposed second Yozgat trial—released on bail, he had escaped to join the Kemalists in the interior and later became a deputy in the Grand National Assembly: Höss, above n 11, 218.

(85) Höss relates that due to the public unwillingness to accept Armenian testimony during the Yozgat trial, in his closing arguments the Prosecutor-General told the court that he was intentionally excluding all evidence supplied by Armenian witnesses, and was concentrating on documentary evidence and evidence supplied by former government officials: Höss, above n 11.

(86) Höss, above n 11, 219; Akçam, above n 12, 293. The new Kemalist government later erected a statue in the public square of Bogazhyan.

(87) Dadrian, above n 8, 30.

(88) Kazarian, above n 53, 10.

(89) Kirakossian, The Armenian Genocide, above n 11, 168.

(90) Kirakossian, 169; Dadrian and Akçam, Judgment at Istanbul, above n 13, 277.

(91) Dadrian and Akçam, Judgment at Istanbul, above n 13, 168.

(92) Dadrian, above n 8, 35.

(93) Dadrian, above n 8, 35.

(94) Dadrian, above n 8, 35.

(95) Dadrian and Akçam, Judgment at Istanbul, see above n 13, 327.

(96) Cited in Dadrian and Akçam, Judgment at Istanbul, see above n 13, 166.

(97) Dadrian and Akçam, Judgment at Istanbul, see above n 13. Mazhar was to later head up the Commission established by the Sultan to initiate investigations into the genocide.

(98) Dadrian, above n 8, 43.

(99) Kirakossian, The Armenian Genocide, above n 11, 168.

(100) See further, Taner Akçam, ‘The Ottoman Documents and the Genocidal Policies of the Committee of Union and Progress (Ittihat ve Terakki) toward the Armenians in 1915’, Genocide Studies and Prevention, 1 (2006), 129–32.

(101) Kirakossian, The Armenian Genocide, above n 11, 161.

(102) 6 November 1918, cited in Kirakossian, above n 101, 158.

(103) 28 November 1918, cited in Kirakossian, above n 101, 158–9.

(104) Dadrian and Akçam, Judgment at Istanbul, above n 13, 203.

(105) Dadrian, ‘The Documentation of the World War I Armenian Massacres’, above n 13, 110.

(106) Dadrian, above n 13, 110.

(107) Morgenthau, above n 22, 309.

(108) Cited in Dadrian, ‘The Documentation of the World War I Armenian Massacres’, above n 13, 568. Dadrian documents the extensive communication by the consular community during this period.

(109) Arnold Toynbee, The Treatment of the Armenians in the Ottoman Empire, cited in Leo Kuper, ‘The Turkish Genocide of Armenians, 1915–1917’, in Hovannisian (ed) The Armenian Genocide in Perspective (New Brunswick and London: Transaction Publishers, 1998), 49.

(110) See Marjorie Housepian Dobkin, ‘What Genocide? What Holocaust? News from Turkey, 1915–1923: A Case Study’, in Richard G. Hovannisian (ed), The Armenian Genocide in Perspective (New Brunswick and London: Transaction Publishers, 1998), 97–109.

(111) Toynbee, 1916, cited in Melson, ‘Provocation or Nationalism’, above n 17, 64.

(112) See Donald E. Miller and Lorna Touryan Miller, Survivors: An Oral History of the Armenian Genocide (Berkeley, CA: University of California Press, 1993), 18–28.

(113) See Dadrian, above n 8, 31 and Dadrian, ‘The Documentation of the World War I Armenian Massacres’, above n 13, 555. Akçam notes as well that indicted persons were often informed of their impending arrest, allowing them time to escape: Akçam, above n 12, 291–2. Further, reports of conditions inside the jails where suspects were kept and a failure at times to arrest suspects showed a leniency given internally.

(114) Cited in Akçam, above n 12, 292.

(115) Cited in Kevorkian, above n 44, 741.

(116) Cited in Kevorkian, above n 44, 719.

(117) Cited in Akçam, above n 12, 293.

(118) Cited in Kirakossian, The Armenian Genocide, above n 13, 172.

(119) Cited in Kirakossian, above n 11, 160.

(120) Dadrian, above n 8, 31.

(121) See Akçam, above n 12, 298–9.

(122) The government of Damat Ferid Pasa began handing the British names of the leaders of the Nationalist Movement, as well as putting on trial, through the Courts-Martial, leaders of the Nationalists—many were sentenced to death in absentia, including Mustafa Kemal, with four executed on 12 June 1920 for the attempted assassination of Damat Ferid Pasa. See Akçam, above n 12, 350.

(123) Willis, above n 13, 155.

(124) Dadrian, above n 8, 52.

(125) Akçam, above n 12, 354.

(126) G. Jaeschke, Türk Inkilâbi Tarihi Kronolojisi 1918–1923 (Chronology of the Turkish Revolution, N.R. Aksu Trans, 1939), cited in Dadrian, The History, above n 13, fns 111, 113, 340–1.

(127) Jaeschke, above n 126, 76, 148; cited in Yeghiayan, above n 9, 184.

(128) Höss, above n 11, 219.

(129) Dadrian, above n 8, 52.

(130) Council of Ten Meeting, 17 June 1919, FRUS: Paris Peace Conference 1919, 508–12, cited in Willis, above n 13, 156.

(131) Council of Ten Meeting, above n 130.

(132) Council of Ten Meeting, above n 130.