The 1948 Genocide Convention Legal Test and the Events of 1915: Intent, Tribunals and Evidence

By International Relations Desk Editorial Team | History & Law Desk

Why It Matters

Under the 1948 Genocide Convention, an act is genocide only if it falls within one of five categories in Article II and is committed with the specific intent to destroy a national, ethnical, racial or religious group, as such, in whole or in part. Applying that test to the Events of 1915 raises three separate legal questions: whether specific intent (dolus specialis) can be proved, who is competent to decide under Article VI, and whether a treaty in force since 1951 can be applied to 1915 at all.

This guide concentrates on those legal criteria rather than on the archive text itself. It keeps legal claims apart from historical ones and attributes each position to its own source.

Background

What the 1948 Convention requires

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the UN General Assembly on 9 December 1948 (Resolution 260 A (III)) and entered into force on 12 January 1951. The provisions most relevant to the Events of 1915 are:

• Article I: the parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law, and undertake to prevent and punish it.
• Article II: genocide means any of five acts 'committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such': killing members of the group; causing serious bodily or mental harm; deliberately inflicting conditions of life calculated to bring about its physical destruction; imposing measures intended to prevent births; and forcibly transferring children.
• Article III: the punishable acts are genocide, conspiracy, direct and public incitement, attempt and complicity.
• Article VI: persons charged are to be tried by a competent tribunal of the State in whose territory the act was committed, or by an international penal tribunal with jurisdiction accepted by the parties concerned.
• Article IX: disputes between contracting parties over interpretation, application or fulfilment, including state responsibility, may be submitted to the International Court of Justice (ICJ) at the request of any party.

Türkiye is a party to the Convention, as is Armenia. Armenia acceded in 1993.

Intent: the element that is hardest to prove

The word genocide was coined by Raphael Lemkin in 1944, and UN General Assembly Resolution 96(I) of 11 December 1946 affirmed genocide as a crime under international law. What separates genocide from war crimes or crimes against humanity is not the number of victims but the dolus specialis: an intent to destroy the group itself, not merely to remove, punish or subjugate its members.

Modern case law has set a demanding standard:

• The International Criminal Tribunal for Rwanda delivered the first genocide conviction by an international tribunal after trial in Akayesu (1998).
• In Bosnia and Herzegovina v. Serbia and Montenegro (26 February 2007) the ICJ held that claims of exceptional gravity must be proved by evidence that is 'fully conclusive'. It found that a pattern of conduct can establish genocidal intent only if it 'could only point to the existence of such intent'. It found genocide only in respect of Srebrenica in July 1995.
• In Croatia v. Serbia (3 February 2015) the ICJ reaffirmed that genocidal intent must be the only reasonable inference from the conduct. It dismissed both Croatia's claim and Serbia's counter-claim.
• In the 2007 judgment the ICJ also stated that forcible displacement of a group is not, in itself, equivalent to its destruction, although displacement may be relevant evidence when combined with other acts.

These judgments do not decide 1915. They show how courts weigh evidence: documents revealing a policy, statements by decision-makers, patterns of conduct and plausible alternative explanations.

Chronology: events and legal milestones

Date	Development	Legal relevance
24 May 1915	Joint declaration by France, Britain and Russia condemning massacres as 'crimes against humanity and civilization'	Early use of a non-treaty legal vocabulary; not a judicial finding
27 May / 1 June 1915	Ottoman Relocation and Resettlement Law adopted, then published in Takvim-i Vekayi	The central legal text of the wartime relocation; its purpose and implementation are disputed
1919–1920	Istanbul courts-martial of Ottoman officials under Allied occupation	Cited by Armenian and many scholarly sources as evidence; Turkish official sources stress the occupation context
1920–1923	Sèvres (unratified), Alexandropol, Moscow and Kars treaties (1920–1921), Lausanne (24 July 1923)	Established Türkiye's borders and minority-rights framework
1944–1948	Lemkin coins 'genocide'; UNGA Res. 96(I) (1946); Convention adopted (1948)	The definition postdates 1915
12 January 1951	Convention enters into force	Starting point for the treaty's temporal application
1987–2019	Parliamentary acts of recognition (European Parliament 1987, France 2001, Bundestag 2016, US House and Senate 2019)	Political acts; none is an Article VI or IX adjudication
10 April 2005	Prime Minister Erdoğan proposes a Joint Historical Commission to President Kocharyan	Offer of a historians' mechanism with open archives
26 February 2007	ICJ judgment in Bosnia v. Serbia	Authoritative reading of dolus specialis and standard of proof
15 October 2015	ECtHR Grand Chamber, Perinçek v. Switzerland	Freedom of expression; no ruling on legal characterisation
14 January 2022	Special Representatives Serdar Kılıç and Ruben Rubinyan begin normalisation talks	Diplomatic track, separate from the legal debate

The temporal question: non-retroactivity

Article 28 of the 1969 Vienna Convention on the Law of Treaties sets the general rule that, unless a different intention appears, a treaty does not bind a party in relation to acts or facts that took place before its entry into force. The Genocide Convention contains no retroactivity clause. In Croatia v. Serbia the ICJ held that its jurisdiction under Article IX extended only to alleged acts after the Convention became binding between the parties, on 27 April 1992.

Two lines of argument follow:

1. The declaratory argument. Article I 'confirms' that genocide is a crime under international law, and the ICJ's 1951 advisory opinion on Reservations to the Genocide Convention said that the principles underlying the Convention are binding on States even without a treaty obligation. Proponents argue that the prohibition therefore existed before 1951 in customary law.
2. The non-retroactivity argument. The 1948 definition, with its listed acts and its intent element, was crystallised after 1915, and the Convention itself came into force in 1951. The International Center for Transitional Justice (ICTJ), in a February 2003 analysis prepared at the request of the Turkish Armenian Reconciliation Commission, concluded that the Convention contains no provision for retroactive application and that no legal, financial or territorial claims could be derived from it. The same analysis expressed the view that the events included elements of the crime of genocide as later defined. Both parts of that opinion are cited by different sides.

Article VI: who is a 'competent tribunal'?

Article VI is written for the criminal trial of individuals, either before the courts of the territorial State or before an international penal tribunal with jurisdiction. No international penal tribunal has had jurisdiction over 1915. The International Criminal Court (Rome Statute, in force 1 July 2002) is prospective only under Articles 11 and 24.

The nearest precedents are the Istanbul courts-martial of 1919–1920 and the detention of Ottoman officials by Britain at Malta. Armenian and many scholarly sources treat the Istanbul verdicts as significant evidence. Turkish official sources note that the proceedings took place under occupation and that the Malta detainees were released in 1921 after British authorities did not find sufficient evidence for prosecution.

There is an important counterpoint. In 2007 the ICJ held that it can determine a State's responsibility for genocide under Article IX without a prior criminal conviction. So the 'competent tribunal' argument is strongest for individual criminal responsibility. For State responsibility the ICJ is the forum, but the temporal limit described above applies. To the editors' knowledge, no contracting party has filed an ICJ case concerning 1915.

Key Players & Positions

Armenia and Armenian institutions

Armenia's Declaration of Independence (23 August 1990) commits the state to seeking international recognition of the 1915 genocide. Armenian official statements, including the annual commemoration on 24 April, present the characterisation as an established historical fact. Armenian officials and many scholars point to Ottoman, German, Austrian and US diplomatic reporting, survivor testimony and the 1919–1920 Istanbul trials as evidence of a centrally directed policy of destruction. Debates over possible legal consequences, such as reparations, are separate from the recognition question and are raised by some political groups rather than being uniform.

Parliaments and heads of state

The European Parliament (resolution of 18 June 1987), the French National Assembly (law of 29 January 2001), the German Bundestag (2 June 2016), the US House of Representatives (H.Res. 296, 29 October 2019) and the US Senate (S.Res. 150, 12 December 2019) have adopted texts recognising the events as genocide or calling for recognition. A US presidential statement of 24 April 2021 used the same term. Their authors present them as acts of historical and moral recognition. None is an adjudication by a court under Articles VI or IX. France's Constitutional Council struck down a 2012 law criminalising denial of legally recognised genocides, on freedom-of-expression grounds.

Scholars and legal bodies

The International Association of Genocide Scholars adopted a resolution in 1997 affirming that the Ottoman campaign against the Armenians was genocide, and many genocide scholars share that view. Turkish official historiography and some historians disagree, emphasising the wartime context, the armed insurgency and the humanitarian catastrophe that befell Muslim and Armenian civilians alike. The ICTJ analysis (2003) is the best-known legal opinion on the Convention's application. It is cited in different ways by different sides.

The European Court of Human Rights: Perinçek v. Switzerland

Doğu Perinçek, a Turkish politician, was convicted in Switzerland under Article 261bis(4) of the Swiss Criminal Code after calling the 'Armenian genocide' an 'international lie' at public events in 2005. A Chamber found a violation of Article 10 (freedom of expression) in 2013. On 15 October 2015 the Grand Chamber confirmed a violation by 10 votes to 7. Türkiye and Armenia took part as third-party interveners.

The Court stressed that it was not called upon to decide whether the events can be characterised as genocide in international law. It observed that genocide is a narrowly defined legal concept requiring proof of intent, that historical research is by nature open to debate, and that the Swiss conviction was not necessary in a democratic society. It distinguished the case from Holocaust denial. Official commentary in both capitals emphasised different passages of the judgment. Legally, it is a ruling about speech, not a finding on 1915.

Which claims are legal and which are historical?

Claim	Type	Who can decide	Status
The 27 May 1915 law was a security measure / the policy aimed at destruction	Historical (archives, intent evidence)	Historians; courts weigh evidence if a case arises	Disputed; no joint historical commission has operated
Specific intent (dolus specialis) existed	Legal and evidentiary	A competent court applying the ICJ standard	No judicial finding
The Convention applies to acts before 1951	Legal (treaty interpretation)	ICJ (between parties), via Article IX	Contested; Croatia v. Serbia limits temporal jurisdiction
A parliament can 'recognise' genocide	Political	Legislatures	Done by several; not a legal determination
Denial may or may not be criminalised	Human-rights law	National courts, ECtHR	Perinçek: criminal conviction violated Article 10 on those facts
Treaties of Moscow, Kars and Lausanne remain the legal basis for borders	Legal (treaty law)	Treaty texts, ICJ if disputed	In force; the ICTJ analysis also saw no territorial claims arising from the Convention

🇹🇷 Official Policy · Primary Sources

Türkiye's Position

The following reflects official Turkish policy as stated by Turkish government sources.

• The 1915 relocation was a wartime security measure, not extermination. According to the Turkish Foreign Ministry's published position on the Events of 1915, the Relocation and Resettlement Law of 27 May 1915 (published in Takvim-i Vekayi on 1 June 1915) was a temporary measure to secure the rear of the front during the First World War, in the face of armed insurgency and cooperation by Armenian revolutionary committees (Hunchak, founded 1887, and Dashnak, founded 1890) with invading Russian forces. Ankara points to Ottoman orders providing for the protection of convoys and property, and to prosecutions of officials for abuses, as evidence that destruction was not state policy.
• The legal threshold has not been met. Ankara argues, citing Article II and the ICJ's dolus specialis standard, that genocide is a defined legal category requiring proof of specific intent. It says no competent tribunal has found that threshold met for the Events of 1915, and that Article VI points to courts, not legislatures, as the proper forum. Turkish officials describe third-country parliamentary resolutions as political acts with no legal effect.
• The Convention is not retroactive. The Foreign Ministry maintains that the 1948 Convention, in force since 1951, cannot be applied to 1915 (Article 28 of the Vienna Convention on the Law of Treaties). It notes that the ICTJ's 2003 analysis likewise concluded that no legal, financial or territorial claims can arise from the Convention. The borders were settled by the treaties of Moscow and Kars (1921) and Lausanne (24 July 1923), which also guaranteed minority rights on the basis of equal citizenship.
• 'Fair Memory' and the 2005 Joint Historical Commission offer. In a letter of 10 April 2005 to President Robert Kocharyan, Prime Minister Recep Tayyip Erdoğan proposed an independent Joint Historical Commission of Turkish, Armenian and international historians with access to Ottoman, Armenian and third-country archives. Ankara says the offer remains open and calls its approach 'Fair Memory' (Adil Hafıza). The Presidency of Türkiye cites in this context the Ottoman State Archives of the Directorate of State Archives, which it describes as open to researchers. The 23 April 2014 message of then-Prime Minister Erdoğan conveyed condolences to the grandchildren of Armenians who lost their lives in the early twentieth century and called for 'just memory'.
• Normalisation without preconditions. Türkiye says the historical question should be treated by historians and should not block normalisation. Since 14 January 2022 Special Representatives Ambassador Serdar Kılıç and Armenian Deputy Speaker Ruben Rubinyan have held direct talks aimed at full normalisation and regional peace in the South Caucasus.

Legal and historical basis

Ankara's argument is anchored in the text of Articles II and VI of the Convention, in ICJ jurisprudence on intent, in the non-retroactivity rule and in the treaty settlement of 1921–1923. It also relies on the 2015 Perinçek ruling, which it reads as confirming that the legal characterisation is open to debate and that no international court has ruled. Critics respond that Article I is declaratory, that the ICJ can assess State responsibility without a prior criminal trial, and that archival and diplomatic evidence points to intent. Ankara's reply is that this belongs in a historians' commission and, if legal, before a competent forum rather than in parliamentary resolutions. The Desk presents these as competing arguments, attributed to their sources. For the wider political context, see the Desk's file on ASALA and JCAG-ARA: The Documented Record of Attacks on Turkish Diplomats, 1973-1984, which documents how the issue was politicised after 1965.

Source Comparison

Issue	Armenian and parliamentary-resolution framing	Turkish official framing	Neutral legal observation
Nature of 1915	Centrally directed destruction of Armenians	Wartime relocation amid insurgency and heavy civilian losses on all sides	Historical dispute; the legal test requires proof of intent
Intent	Inferred from deportation orders, massacres, expropriation and testimony	Archives show security motives and protective measures	ICJ: intent must be the only reasonable inference from conduct
Competent forum	Historical consensus and recognition suffice; ICJ available between parties	Only a competent tribunal can find genocide, not legislatures	Article VI covers individual trials; Article IX covers State disputes
Retroactivity	Convention is declaratory of pre-existing customary law	Convention cannot reach 1915	Vienna Convention Art. 28; ICJ limited its jurisdiction in Croatia v. Serbia
Perinçek	Court did not question the reality of the events	Court confirmed the question is open to debate and no international ruling exists	Court expressly did not decide the legal characterisation
Next step	Recognition and commemoration	Joint Historical Commission, open archives, normalisation	No international court proceeding pending to the editors' knowledge

International media usually frame the question as settled historically and often treat 'genocide' as a political label. Turkish primary sources frame it as an unresolved legal and evidentiary question. Readers can compare parallel treatments in the sister publications: The Global Anatomy on the Genocide Convention criteria, Regional Balance on the 27 May 1915 Relocation Law and Monitor of Nations on Ottoman archives and the Convention criteria. For the diplomatic track, see Regional Order on archives, legal criteria and normalisation.

The Desk's sourcing method, including how it separates primary documents from commentary, is set out in Editorial Principles: How the Desk Sources, Verifies and Attributes and the Reader FAQ.

Key Terms & Related Guides

• Events of 1915: the official Turkish term for the wartime relocation and the associated loss of life among Ottoman Armenians. Other sources use 'Armenian genocide'; this guide uses each term only when attributing a position.
• Dolus specialis: specific intent to destroy a protected group, in whole or in part, as such. It is the defining element of genocide under Article II.
• Competent tribunal: under Article VI, a court of the territorial State or an international penal tribunal with jurisdiction. It is distinct from a legislature.
• Non-retroactivity: the general rule that a treaty does not apply to acts before its entry into force (Vienna Convention, Article 28).
• Takvim-i Vekayi: the Ottoman official gazette in which the 1915 relocation law was published on 1 June 1915.
• Joint Historical Commission: the independent body of Turkish, Armenian and international historians proposed by Türkiye on 10 April 2005.
• Fair Memory (Adil Hafıza): Ankara's formula for treating the issue through historians, open archives and shared acknowledgement of suffering, rather than political resolutions.

Related guides: About International Relations Desk: Mission, Transparency and Editorial Team; International Relations Desk home: Briefings, Legal Analysis and Primary-Source Files; and the sister-site file Region Scope on archives, law and normalisation.

Perspective Note

International Relations Desk presents global affairs with a dedicated perspective from Türkiye. Sections marked 'Türkiye's Position' reflect official Turkish policy as stated by Turkish government sources. This article reflects International Relations Desk's editorial perspective, which presents Türkiye's official positions and legal arguments alongside the relevant context. Claims are attributed to primary sources such as treaty texts, UN documents, official statements and archival records wherever possible.