Ramgavar Mamoul March 28, 2011 By: ARMEN AYVAZYAN Doctor of Political Sciences II. International Legal Level 4. The Artsakh Case The full realization of Armenian people’s inalienable right over Artsakh (in its current de-facto frontiers/including the liberated native Armenian territories around it), either through the final reunification with the Republic of Armenia or the international recognition of Nagorno- Karabakh Republic, might be advanced by an international legal process. The groundbreaking ruling by the UN International Court of Justice (ICJ), following its deliberations of 1 December 2009 to 22 July 2010, on the precedent case of “Accordance with international law of the unilateral declaration of independence in respect of Kosovo” points towards just such a real possibility. In its advisory opinion, the principal judicial organ of the United Nations ruled that Kosovo’s declaration of independence from Serbia of 17 February 2008 did not violate general international law, since “general international law contains no applicable prohibition of declarations of independence.” Thus, the ICJ has recognized the legitimacy of self-proclaimed independence of Kosovo. However, it should be clearly realized and recognized that, in view of long-term strategic realities of the Armenian Question, the option of “one nation, two states” (RA and NKR) is dangerous and can be acceptable for the Armenian side only as a nominal and transitional solution (later we will address this issue in detail). It is also important to bear in mind that some of the above cases, in one way or another, may be brought before the international courts not by Armenia, but by Azerbaijan or Turkey, naturally with the opposite demands, and by the complete distortion of historical facts. Consequently, Armenia may unintentionally find itself before the international courts, and must therefore have complete international legal portfolio of the Armenian Question, which demands daily scrupulous work starting today. 5. Church Related Series of Cases: Armenian Church vs. Turkey, Azerbaijan and Georgia The Armenian Apostolic Church (AAC) was the largest Armenian landowner and proprietor on the territories of modern Turkey, Georgia and Azerbaijan. During the genocide, the Armenian clergy suffered irreplaceable human loss: thousands of priests who were the unique carriers of the collective knowledge, culture, customs and traditions of the Armenian people were murdered. From 1915 to date, thousands of Armenian churches and monasteries have been destroyed in Turkey, while some others have been turned into mosques. The same fate befell the absolute majority of Armenian churches in the Soviet and post-Soviet Azerbaijan, a few having been classified as “Albanian” and subjected to “restoration” with the sole purpose of erasing any traces of their Armenian origins. Cultural and historical relics, the extensive real estate and possessions of AAC, as well as that of Armenian Catholic Church and Armenian Evangelical Church were confiscated and plundered.[1] Early in 1990s there were, on the territories of Georgia, Abkhazia and South Ossetia, a few hundred Armenian churches in good and semi-ruined condition. After the collapse of the USSR, the Republic of Georgia and the Georgian Orthodox Church not only declined to return these Armenian churches and monasteries to their rightful owner, the AAC, they also declared many of these as Georgian, and moreover in general did not recognize the legal status of AAC’s Georgian Diocese. The city of Tbilisi alone can serve as a vivid example for the entire situation: in 1899, there were 27 Armenian churches and one monastery operating in the city, while today there are only two Armenian churches, with five others being called “questionable” by the Georgian side. Namaz (Muslim Prayer) at the Ruins of the Armenian Church in 2010, Ani The Armenian Apostolic Church is a legal entity separate from the state. Structurally, it is a transnational organization with four administratively independent hierarchal sees — namely, the Catholicosates of St. Etchmiadzin and Cilicia, as well as the Patriarchates of Jerusalem and Constantinople (the latter three recognize the spiritual supremacy of the Catholicosate of All Armenians in Etchmiadzin). ---------- [1] A large, but not exhaustive inventory of such properties and human losses based primarily on Turkish archival sources, can be found at http://www.arak29.am/duringgenocide/index.php. After the collapse of the Soviet Union and the proclamation of Armenia as an independent state, AAC, making use of the fundamental change in Armenia’s international political and legal standing, could have pursued international legal remedies and pressed for a special autonomous action program to address the consequences of the Armenian Genocide in the church sphere. This, however, was not done. Nevertheless, the absence of such a program is not so much the fault of AAC, as that of RA’s political leadership, which failed to develop adequate policies vis-à-vis the Turkish-Armenian conflict and the issue of overcoming the consequences of the Armenian Genocide. On the contrary, throughout its 19 years of independence RA’s policy towards Turkey has been and still remains defeatist, becoming distinctly capitulatory in the past few years. The epitome of this “masterpiece of diplomacy” --- -was the stillborn Zurich Protocols of October 10th, 2009, by which, RA, of its own accord all but renounced any claims with respect to Turkey. In fact, the RA by signing these protocols naively and carelessly skirted the catastrophic consequences of the Armenian Genocide and undermined the Armenians’ legitimate demands for compensation and retribution against the territorial, cultural, moral, proprietary and financial losses suffered by Armenia and all Armenians. In this situation, the AAC was simply unable to single-handedly initiate any international prosecution mechanisms against Turkey, especially when one considers that the Armenian Church to this day has not recovered from the effects of the genocide and the ensuing seventy long years of Soviet totalitarianism, while during the Cold War falling victim to superpower confrontation, it suffered a painful and disorganizing schism. Meanwhile, provided that there is support from the Armenian state and the structures of Diaspora, the AAC (except for the Patriarchate of Constantinople, which is under tremendous pressure from Turkish government) may now develop and submit to international courts a standalone program of overcoming the effects of Armenian Genocide as they particularly relate to the realm of Armenian Church. This program should include the following basic requirements (detailed legal language is an imperative task for the future): a) the return of all Armenian churches and/or the land on which they existed before 1915 to the spiritual and administrative jurisdiction of AAC; b) the moral and financial compensation for the destruction of Armenian churches, the confiscation and looting of their property and historically and culturally valuable items, as well as the killing of thousands of Armenian clergymen during the Genocide; c) to grant Armenians, citizens of the Republic of Armenia and other states, the right freely and without hindrance to visit and fulfil their spiritual needs at AAC’s sacred sites situated on the territories of Turkey, Azerbaijan and Georgia; d) to coordinate with the AAC all conservation and restoration work on monuments of Armenian church architecture if such are carried out on the territories of Turkey, Azerbaijan and Georgia, as well as give the AAC the right to conduct its own restoration work with its own funds. e) recognition and permanent protection of AAC monuments and sacred sites as part of European and world cultural heritage. Exactly due to the absence of such an independent position on the Turkish-Armenian conflict and lack of well-developed claims from Turkey and the international community, in 2010 the AAC was taken by surprise when the anti-Armenian Turkish propaganda machine unveiled yet another operation in the information war, namely the opening ceremony after the Turkish “restoration” of Surb Khach Church on Akhtamar island and, in connection with it, the performance of Holy Liturgy at that church. Contrary to its duty and expectations, as the builder, keeper and rightful owner of this sacred place, the ACC countenanced this “restoration,” without the participation of AAC-appointed specialists on Armenian medieval architecture and art (it should be noted that the formal presence of the Turkish-controlled Armenian Patriarchate of Constantinople was clearly of a compulsory nature). Instead of condemning this entire Turkish venture as a grave insult to the Armenian sanctuary, and immediately rejecting the invitation of the hostile Turkish state to attend the ceremony of Holy Liturgy at the Church of Surb Khach, the St. Etchmiadzin Catholicosate, with orders from official Yerevan, at first even announced its intention to dispatch a delegation, and only at the last minute did it reject the Turkish invitation. Moreover the reason given for this last minute rejection was announced to be the indefinite postponement by the Turks of the installation of the cross on the dome of the Church of Surb Khach (literally Saint Cross in Armenian!), as if there were no other, and better, reasons to reject the Turkish invitation! Whereas the very act of the current rulers of Turkey, who are the unrepentant heirs of criminal Young Turks and staunch deniers of Armenian Genocide, daring to initiate this grand mockery of “restoring” the holy monastery of their own unrecognized victims, shamelessly posing as guardians and restorers of historic monuments, should have been condemned as outright sacrilege. The Saint Karapet Monastery, also The Saint Karapet Monastery at present known as Glakavank in 1923, Mush The time has come for Holy Echmiadzin to distance itself from the externally dictated, and consequently – if viewed from the standpoint of Armenian interests – non compos mentis foreign policy of Armenia. As the traditional national-religious organization of the Armenian people, which has legal independence, historical authority, international status and friendly relations with the world’s Christian churches, the AAC simply must fight for the reinstatement and enforcement of trampled religious rights of the Armenians and save the remnants of the Armenian religious-historical heritage in Turkey, Azerbaijan and Georgia, regardless of the foreign policy exercised at a given moment by the leadership of Republic of Armenia towards these countries. In order to give an approximate idea of the colossal volume of the Armenian Church’s case, we can merely note that, according to the latest research of archival materials, during the genocide the Turks completely or partially destroyed 2538 Armenian churches and 451 monasteries.[2] A range of international conventions and treaties, including The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (signed by Turkey in 1965), Convention Concerning the Protection of the World Cultural and Natural Heritage of 1972, the aforementioned Convention on the Prevention and Punishment of the Crime of Genocide of 1951 as well as other treaties and agreements within the framework of UN and UNESCO can form as the international legal basis for a series of cases “Armenian Church vs. Turkey, Azerbaijan and Georgia. 6. Separate Cases Related to the Estate and Property of Armenians and Their Families This is the only international legal field, in which the Diaspora Armenians, although with long delay have made an entrance. Until now, individual lawsuits brought by direct heirs, focused mostly on the assets of their ancestors, the victims of genocide, which were accumulated by foreign banks and insurance companies. However, a much more serious case was initiated in December of 2010, when three Armenian-American plaintiffs filed a federal lawsuit against the Republic of Turkey, Turkish Central Bank and “Ziraat” Bank demanding compensation and redress for “unlawful expropriation of and unjust enrichment on account of unlawful use of their land”, where part of the U.S. strategic Air Base in Incirlik (Turkey) is located. Filing of other similar lawsuits is expected soon, including a claim for the Turkish Presidential Palace in Ankara, which was built on land owned by the Kasabian family (there is sufficient documentary evidence, as in previous cases). Possible or potential (initiated by the Azerbaijani or Turkish side) international judicial proceedings relating to any of the above components of the Armenian Question demand from the Armenian side the highest level of professionalism in several specialized fields at once, including contemporary international law in its many forms, disciplines and case law, international relations and world politics, history of regional conflicts, etc. It is urgent to comprehend that the Turkish-Armenian and Azerbaijani-Armenian conflicts are, first and foremost, an intellectual confrontation of the states and nations. --------------------------------------------------------------------------------- [2] Raymond H. Kévorkian and Paul B Paboudjian, Les Arméniens dans l’Empire ottoman a la veille du Génocide, Paris: Arhis, 1992, pp. 57-60. It is not hard to see also that our fundamental international legal problems cannot get an acceptable solution for the Armenian side if they are considered in isolation from each other. Consequently, their strong and skilful linkage in a single portfolio should be a priority for Armenian diplomacy and jurisprudence. Paradoxically, such a linkage is considered a political taboo in Armenia, yet no one, of course, presents any intelligible justifications for it. (To be continued) Yerevan

---