By Philippe Raffi Kalfayan
A recent column in the Armenian Mirror-Spectator (“Intolerance Toward ‘the Other’” by Raffi Bedrosyan) reported on a shocking event that happened in Turkey during the inhumation of a non-Turkish person, displaying an unequalled degree of hatred and intolerance toward the “other” to the extent that the family had to forcibly renounce burying its relative in that cemetery, because the protesters claimed the cemetery soil was forbidden to Armenians. This is the occasion to stress that such discriminatory intolerance is a source of evil and may prompt or result in most severe violations of international human rights law, namely crimes against humanity, the supreme form of which is genocide.
In Turkey, the ideology and then the Constitution of the Republic of Turkey rely upon constitutional segregation, both ethnic and religious. The Constitution recognizes exclusively “Turkishness” and the Treaty of Lausanne, considered as a fundamental law, distinguishes the Muslim from the Non-Muslim.
Since the time before the Genocide, the “other” is seen as an enemy (“the enemy of the interior”) when it relates to minorities, or as a “giaour” (infidel) as it relates to non-Muslims.
Already in the 19th century, the Armenian Christian minority was seen as “other” because [of the need to be] “protected” either by the Western nations or/and by the Russian Empire. They became “enemies” for the purpose of justifying the “final solution” in 1915.
Peter Balakian quotes in The Burning Tigris British ethnographer William Ramsey, an enthusiast of Turkish civilization who spent more than 10 years in the country, and described what being a “giaour” implied: “The Turkish law (…) was synonymous with unspeakable contempt (…) The Armenians (and the Greeks) were dogs, pigs (…) good for spitting when their shadow was grazing a Turk, good for humiliation, mats to clean the mud off. Imagine the inevitable result of several centuries of slavery, to endure insults and scorn, centuries during which nothing of what the Armenian possessed — nor his properties, nor his house, nor his life, nor his own person, nor his family — was sacred or escaped violence — an unreasonable and gratuitous violence — and when resisting it in a violent way meant death.”
Nowadays, racism and nationalism are on the rise in almost every big nation. It is therefore not surprising to observe a violent resurgence of old ghosts in Turkey. Witness the recent creation of the first racist political party, which singles out Turks as a superior race (www.hurriyetdailynews.com/first-racist-political-party-founded-in-turkey-in-2017-turks-presented-as-superior-race-125310.)
In Azerbaijan, the Nagorno-Karabakh conflict and the humiliation of the Azeri army have given rise to official hatred, enshrined as national doctrine. The Azerbaijani leadership has even endorsed the denial of the Armenian Genocide and perpetuates the falsehood.
Edward Nalbandian, minister of foreign affairs of the Republic of Armenia, in his address at the 24th Meeting of the Organization for Security and Cooperation in Europe (OSCE) Ministerial Council (Vienna, December 7, 2017) stated that “Azerbaijan continues to practice anti-Armenian hate speech, it calls all Armenians of the world its number one enemy, writes in the textbooks that Armenians are genetic enemies of Azerbaijan, erases all traces of indigenous Armenian cultural heritage and religious sites, and claims that territories of Armenia are ancient Azerbaijani lands.”
Hate speech has become the main vector of discrimination against Armenians in Turkey as well as in Azerbaijan.
Hate Speech and International Crimes
Hate speech is a form of discrimination and has been a significant element in the commission of crimes of genocide, crimes against humanity and war crimes because it incites to intolerance and violence against a person or a group of persons. Past and current examples are legion: slavery and human trade, colonial crimes, genocide and crimes against humanity (Hereros and Namas in Namibia, Armenians in the Ottoman Empire, Rwanda, European Jews, Muslim Bosnians in former Yugoslavia, Apartheid in Israel and South Africa, African tribes in Central Africa and Sahel, etc.).
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Although widely recognized as source of evil and duly prohibited by regional and international treaties, it does not prevent hate speech to prosper across all continents. Today’s official discourses in many countries are based on nationalistic and religious exclusions, and may lead to humanitarian disasters.
The direct and public incitement to commit genocide is one of the five acts punishable by the Genocide Convention. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is prohibited by the International Covenant on Civil and Political Rights (ICCPR, art. 20.2). The UN Convention on Elimination of all forms of Racial Discrimination’s preamble reads “(…) that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere.” Art. 4(c) emphasizes that “States Parties shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.” The general recommendation number 35 about “Combatting racist hate speech” issued by the Committee on the Elimination of Racial Discrimination (CERD), recommends (Art. 13) that the States parties declare and effectively sanction as offences punishable by law: (a) All dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means; (b) Incitement to hatred, contempt or discrimination against members of a group on grounds of their race, color, descent, or national or ethnic origin; (c) Threats or incitement to violence…; (d) Expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination…, when it clearly amounts to incitement to hatred or discrimination. CERD adds (Art. 14) that public denials or attempts to justify crimes of genocide and crimes against humanity, as defined by international law, should be declared as offences punishable by law, provided that they clearly constitute incitement to racial violence or hatred.
It is not by coincidence that the Republic of Armenia took the lead at the UN Human Rights Council (HRC) in 2015 to draft a resolution about the Prevention of Genocide, where they successfully inserted during preliminary session the Art. 9 “Condemning the intentional public denial or glorification of crimes of genocide and crimes against humanity as defined by international law, and notes with concern that public denials create a risk of further violations and undermine efforts to prevent genocide.” This article has disappeared in the final draft adopted by the HRC on April 7, 2015, although the preamble clearly “notes with concern that attempts to deny or to justify the crime of genocide, as defined in the Convention and established as such under international law, may risk undermining the fight against impunity, reconciliation and efforts to prevent genocide.”
The ECRI, which is the Council of Europe’s commission combating racism and intolerance, considers that hate speech is to be understood as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons. It recognizes that hate speech may take the form of the public denial, trivialization, justification or condoning of crimes of genocide, crimes against humanity or war crimes which have been found by courts to have occurred, and of the glorification of persons convicted for having committed such crimes.
Both Turkey and Azerbaijan have ratified the UN Convention combatting racial discrimination, and are parties to the Council of Europe and European Court of Human Rights.
Hate Speech in Turkey: A Social Phenomenon at State level
The last ECRI report on Turkey (June 2016) denounces that “hate speech is expressed increasingly by officials and other public figures, including senior representatives of the state and some members of the opposition.” The report gives the prominent example of President Erdogan’s televised statement: “They have said I am Georgian […] they have said even uglier things — they have called me — pardon my language — Armenian, but I am a Turk.” A recent research has unveiled the underlying high levels of intolerance: around 70% of the respondents to a recent survey had negative views and attitudes towards Jews and Armenians (Anti-Defamation League 2015; Küçükcan 2010: 16).
Most reported hate speeches go unpunished and ECRI further states that they are not aware of criminal court convictions for hate speeches targeted at Kurds, Alevi or non-Muslim communities. On the contrary, law enforcement authorities use Art.216 of the Criminal Code on incitement to hatred almost exclusively in cases of offensive speech concerning the majority religion, i.e. Muslim Sunni.
Erdal Dogan, a lawyer, told Today’s Zaman on March 20, 2014 that the problem of ethnic and racial discrimination is deeply rooted in Turkey and will not be resolved soon. “Since the founding of the Turkish Republic, our country had been built according to the concept of ‘oneness’. To ‘Turkify’ everyone, governments normalized hate speech and did not recognize ethnic or religious differences.” He further adds, “the goal of such policies was to label as an enemy all those who were not Sunni Muslim Turks.”
Baskin Oran, a prominent political scientist, and one of the two co-authors of the official report on minorities ordered by Prime Minister Erdogan in 2004, kept saying that the definition of citizenship in Turkey is the fundamental matter sustaining discrimination against minorities.
Uzay Bulut, a journalist, reminded in an article titled “Turkey: Normalizing Hate” that insulting non-Turkish and non-Muslim people has almost become a social tradition in Turkey. Prejudice and hate speech have become normalized.
In 1996, in Turkey’s parliament, then interior minister and current MP from the Nationalist Movement Party (MHP) Meral Aksener, said that the leader of the PKK (Kurdistan Workers’ Party), Abdullah Ocalan, was “Armenian semen.” She then clarified the remark by saying, “I did not refer to the Armenians living in Turkey. I referred to the Armenian race in general.” Bulut recalls that “Armenian semen” or “Armenian sperm” are the most popular swear words in Turkey, often used for Kurds, as well.
Here we may point, despite its shortcomings, to the decision of the European Court of Human Rights (ECHR) Grand Chamber in the Dogu Perinçek case. The judges have indeed voluntarily truncated and biased the interpretation of Perinçek’s statements denying the Armenian Genocide to avoid those to be qualified as the manifestation of anti-Armenian racism. Thus, the unfortunate outcome of the decision, confirmed by the decision of the French Constitutional Court on January 8, 2016, is that hate speech and the Jewish Holocaust denial are unique in the sense that antisemitism is at the root of Holocaust denial while racial discrimination would not be at the root of other genocides’ denial.
Non-governmental organizations, parties to the Perinçek case, have failed imposing the reality of the link between the anti-Armenian hate speech and genocide denial. The Armenian government did not want to challenge the integrity of freedom of expression (nor did the government of Turkey).
Meanwhile, the Court asserts (para. 227) “the right of Armenians to the respect of their dignity and that of their ancestors, including their right to respect for their identity constructed around the understanding that their community has suffered genocide.” This de jure association between the Armenian identity and the suffered genocide restores the link between hate speech and genocide denial in the light of the respect to human dignity; a promising and potential argument for future legal battles around those questions.
In June 2015, Turkish nationalists protesting in front of the German Embassy in Ankara in the aftermath of the adoption by the German Parliament of a resolution recognizing the Armenian Genocide, shouted: “The best Armenian is a dead Armenian.”
Azerbaijan, Hate Speech and Karabakh
In the ECRI report concerning Azerbaijan (March 2016), one can read that “almost all of the 196 hate speech items dealing with ethnic conflicts were targeted at Armenians. Politicians and civil servants were the main disseminators of hate speech, followed by journalists.” Other sources confirm recurrent hate speech towards Armenians, which is connected to the conflict over Nagorno-Karabakh, the frequent ceasefire violations at the contact line and the resulting deaths and injuries. The Advisory Committee of the Framework Convention for the Protection of National Minorities for example noted “a persistent public narrative surrounding the conflict over Nagorno-Karabakh identifying invariably Armenia or Armenians as ‘the enemy’ and openly promulgating hate messages.”
According to other sources, there is a conflict-ridden domestic political discourse and Azerbaijan’s leadership, education system and media are very prolific in their denigration of Armenians. Political opponents are accused of having Armenian roots or of receiving funds from Armenian sources. What is worse, an entire generation of Azerbaijanis has now grown up listening to constant rhetoric of Armenian bashing. According to a 2012 survey, 91 percent perceived Armenia as Azerbaijan’s greatest enemy (Caucasus Research Resource Centre et al. 2013: 21).
In a recent article, Anzhela Elibegova, co-author of a book titled Armenophobia in Azerbaijan writes that “Armenians are the perfect external enemy for Azerbaijani authorities who use the current situation to aim their propaganda machine in the necessary direction, falsify history and disseminate Armenophobia domestically. She quotes many official declarations showing that Armenophobia emanates from the head of state, President Ilham Aliyev. The excerpts of his speeches are given as examples to show that the targets of its Armenophobia are not Karabakh Armenians, but the Armenian nation, which “will soon perish from the world map.”
Others in power there offer even more aggressive declarations. Ogtay Asadov, chairman of the National Assembly of Azerbaijan said: “During the last century Armenians violently massacred over two million Azerbaijani people and Turks. Armenian nationalists are the ones responsible for all these murders.” Elman Mammadov, a member of the National Assembly of Azerbaijan noted: “It is not clear why Turkey tolerates Armenian people on its lands. What is the reason Turkey does not require Armenians to free their lands? Turkey should be a state without Armenians […]. If Turkey and Azerbaijan unite, they may wipe Armenia off the map of the world. Armenians should beware of this […].” And Hafiz Hajiyev, Leader of the New Musavat Party offered: “Our sons in Armenia will set the nuclear plant in Armenia to explode so that no Armenian is left in that territory.”
Those political declarations could have been interpreted as intimidation pressures, if one had not witnessed already inhumane criminal acts resulting from this hatred dissemination.
The first example is that of Gurgen Margaryan, a lieutenant in the Armenian Armed Forces, hacked to death in his sleep by Azerbaijani Lieutenant Ramil Safarov in Budapest, Hungary in 2004. Both men were participating in a NATO-sponsored English-language training course at the Hungarian University of National Defense within the framework of the “Partnership for Peace” program. The gruesome murder sent shockwaves across the world for its barbarity. Safarov was sentenced to life imprisonment but under questionable circumstances was extradited to Azerbaijan in 2012, where he received a hero’s welcome by both the government and people.
The second example is related to the “April war” occurrences (April 2-6, 2016). In the village of Talish (Nagorno Karabakh), three elderly members of the Khalapyan family, including 92-year-old Marusya Khalapyan were brutally tortured, mutilated and killed. Three servicemen, Hrant Gharibyan, Hayk Toroyan and Kyaram Sloyan were beheaded by Azerbaijani military in the vicinity of Talish. Photos of Azerbaijani soldiers posing with the head of Kyaram Sloyan were shared on social networks. Eighteen other servicemen were listed as missing in action. Their bodies later transferred to the Armenian side had signs of torture and mutilation.
Although this column has no intention to elaborate on the topic of Nagorno-Karabakh self-determination, it must be highlighted briefly that self-determination is divided in two concepts. The internationally coded one is the internal self-determination. It foresees the implementation of self-determination with the consent of the sovereign State and relying upon democratic and rule of law principles. The un-coded one, the external self-determination proceeds of the casuistic method and is often arbitrarily assessed by the so-called “international community.” The threshold imposed for considering the second concept are egregious and repeated violations of international human rights laws against the minority group. If the State responsible does not stop or prevent them, it should then either consent on its own for the minority or oppressed group to the right to secession, and consequently accept constitutional changes of its state structure, or run the risk of a “remedial secession” by force.
Nagorno-Karabakh is a de facto case of unilateral secession, although legally implemented in respect to the USSR Constitutional provisions regarding the autonomous republics. Whether the situation at the time was meeting the criteria fixed in the Quebec case for exceptional circumstances of secession, both parties have their own arguments and it will remain a controversy.
This question does not matter any longer. In fact, secession from the State in which a people forms a part is regarded by many prominent authors and some States as a right of last resort if the denial of fundamental rights of minority groups is sufficiently blatant and irremediable — in other words if the said groups are victims of attacks on their physical existence or integrity, or of a massive violation of their fundamental rights. This is what the Supreme Court of Canada stated in substance in this reference case.
The doctrine of the CERD states that “[…] the external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.” It further emphasizes that “in accordance with the Declaration on Friendly Relations, none of its initiatives should be construed as authorizing or encouraging any action which would dismember or impair, totally or part, the territorial integrity or political unity of sovereign and independent States conducting themselves in accordance with the principle of equal rights and self-determination of peoples and possessing a government representing the entire population of the territory without distinction of race, creed or color.”
It is submitted therefore that the current official policy of hatred and racial discourse promulgated by Azerbaijan will lead to the elimination by any means of Armenians from Nagorno-Karabakh. The OSCE Minsk Group came to this conclusion long ago. As a result, the current diplomatic process should recognize this fact and its consequences.
(Philippe Raffi Kalfayan is an international legal expert, the former secretary general of the International Federation for Human Rights (FIDH), an associate researcher at the Paris Human Rights Center at the University of Paris 2 Pantheon Assas.)