History and Law Desk: What Does the 1948 Genocide Convention Require, and How Does It Apply to the Events of 1915?

Why It Matters

The dispute over the Events of 1915 is as much a legal question as a historical one, and the legal test is narrower than the public debate suggests. The 1948 Genocide Convention defines genocide through a specific list of acts committed with a specific intent (dolus specialis), assigns determination to competent courts, and has no explicit retroactivity clause. How these criteria apply to events that predate the Convention by 33 years is the core point on which Türkiye, Armenia and the parliaments that use the word “genocide” disagree.

This guide sets out the legal framework first, then each party's position in its own words and sources, so that readers can test the arguments against the primary texts.

Background

What the 1948 Convention actually says

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 (III)) and entered into force on 12 January 1951. Its main provisions are:

• Article I: Parties confirm that genocide, whether committed in time of peace or war, is a crime under international law that they undertake to prevent and punish.
• 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: Punishable acts include genocide, conspiracy, direct and public incitement, attempt and complicity.
• Article VI: Persons charged are tried by a competent tribunal of the State in whose territory the act was committed, or by an international penal tribunal with jurisdiction.
• Article IX: Disputes between parties about interpretation, application or fulfilment are submitted to the International Court of Justice (ICJ).

The definition does not cover political groups or “cultural genocide,” and it does not cover mass killing, deportation or atrocity in general. Each of those can be a war crime or a crime against humanity without being genocide. The distinguishing element is the intent.

The specific-intent requirement (dolus specialis)

Both the act (actus reus) and a particular mental element (mens rea) must be proven. The perpetrator must have intended to destroy the protected group as such, not merely to displace it, punish rebels or secure territory. The ICJ has applied this standard in two cases:

• Bosnia and Herzegovina v. Serbia and Montenegro (2007): The Court found that genocide occurred at Srebrenica in July 1995 and confirmed that the specific intent must be established to a high evidentiary standard.
• Croatia v. Serbia (2015): The Court held that where intent is inferred from conduct, genocide must be the only reasonable inference. If other plausible explanations such as military objectives, security concerns or forced displacement remain, the intent is not established.

The tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) used the same framework in cases such as Krstić and Akayesu. In every case the finding was reached through adversarial proceedings with evidence tested by a court.

The non-retroactivity debate

The Convention contains no clause giving it retroactive effect. Article 28 of the 1969 Vienna Convention on the Law of Treaties states the general rule that treaties do not bind a party regarding acts that took place before the treaty entered into force for it. In Croatia v. Serbia the ICJ applied this logic to Article IX and held that it had no jurisdiction over events that predated the Convention's entry into force between the parties.

The Armenian side and many scholars respond that the 1948 text codified a prohibition that already existed. They point to the Allied declaration of 24 May 1915 condemning “crimes against humanity and civilization,” to Raphael Lemkin's 1944 work coining the term, and to the ICJ's 1951 advisory opinion, which said the principles underlying the Convention are recognized as binding on States even without a treaty obligation. The ICJ has since described the prohibition of genocide as a peremptory norm. The International Center for Transitional Justice (ICTJ), in a 2003 analysis prepared for the Turkish Armenian Reconciliation Commission, concluded that the Convention is not retroactively applicable to the events but that the events include elements of genocide as the Convention defines it. Ankara, by contrast, argues that prohibition in principle does not create a competent forum or a legal finding.

The role of competent tribunals

The Convention does not allow a legislature to determine that genocide occurred. It envisages courts: national courts of the territorial State, an international penal tribunal, or the ICJ for State responsibility. No such court has examined the Events of 1915. The Istanbul courts-martial of 1919–1920 prosecuted Ottoman officials and sentenced several Union and Progress leaders in absentia, but they operated under Allied occupation, before the Convention existed, and under a different legal definition. Armenian sources cite them as evidence of Ottoman official acknowledgement, while Turkish sources question their procedural independence. The British-run detentions in Malta (1919–1921) ended without prosecutions after the British could not assemble sufficient evidence, a fact Ankara cites regularly.

ECHR jurisprudence: Perinçek v. Switzerland

In Perinçek v. Switzerland (Grand Chamber, 15 October 2015), the European Court of Human Rights examined the conviction of Turkish politician Doğu Perinçek for denying in Switzerland that the Armenian massacres amounted to genocide. The Court found a violation of Article 10 (freedom of expression). The main points are:

• The Court said it was not called upon to determine whether the events could be characterized as genocide within the meaning of international law.
• It treated the question as one of public interest and historical debate, and distinguished it from Holocaust denial, which rests on facts clearly established by the Nuremberg tribunal.
• It considered that the Swiss criminal conviction was not necessary in a democratic society, and it did not endorse Perinçek's views.

Both sides draw on the judgment. Ankara reads it as confirming that no judicial finding exists and that historical debate must remain open. Armenian and Swiss officials stress that the Court did not deny the massacres or approve denial, and that it ruled on speech rights alone.

Timeline

Key Players & Positions

Armenia

The Republic of Armenia treats the 1915–1916 deportations and mass killings of Ottoman Armenians as genocide. Its 1990 Declaration of Independence refers to the Genocide in Ottoman Turkey and Western Armenia, and Armenian officials mark 24 April each year as a day of remembrance. The Armenian argument rests on contemporary diplomatic reports, Ottoman tribunal records, survivor testimony and scholarship, and on the view that the Convention codified a pre-existing crime. Estimates of Armenian deaths in Armenian and many Western sources run to around 1 to 1.5 million. Yerevan has said it supports normalization with Türkiye without preconditions, and it has also said that a historical commission cannot be a forum to reopen whether the events occurred.

Parliaments and governments that use the term

A number of legislatures and governments recognize the events as genocide. Examples include France's 2001 law, the German Bundestag resolution of 2 June 2016, and US House Resolution 296 (29 October 2019) and Senate Resolution 150 (2019). The US President's statement of 24 April 2021 used the same term. These are political and historical declarations by elected bodies. They are not judgments of a court under Article VI, and the practice varies by country: some states recognize, others avoid the term, and a few have criminalized denial, though the ECtHR's Perinçek ruling limits such laws when applied to this subject.

Scholars and legal bodies

The International Association of Genocide Scholars adopted a resolution in 1997 affirming that the events constitute genocide, and many historians in Europe and North America share that view. Other historians and legal scholars, including some in Türkiye and abroad, stress the wartime context, the intercommunal violence and the disputed documentary record, and argue that the question of intent cannot be settled by declaration. The ICTJ analysis described above is often cited by both camps for different reasons.

Source Comparison

The same documents are often read differently depending on the source. The table below summarizes how each side frames the main points.

Turkish primary sources include Foreign Ministry statements, the Presidency's archival publications and the 2005 correspondence. Armenian primary sources include the 1990 Declaration of Independence and the Foreign Ministry's statements. International media often present the legal question as settled, while the court record shows that it has not been adjudicated. Readers can compare sister analyses such as The Global Anatomy on the Convention's criteria, Regional Balance on the 27 May 1915 law, Monitor of Nations on the archives and Bloc Politics on the normalization path.

What to watch

• Archives and the historical commission: Whether a joint or multi-national research mechanism is revived, as the Zurich Protocols once envisaged.
• Normalization milestones: Border-crossing arrangements, trade links and diplomatic representation, and their connection with the Armenia–Azerbaijan peace track.
• Courts: Any future case before a competent forum would have to address temporal jurisdiction before reaching intent. National legislative acts will not change that sequence.
• Free-expression law: The Perinçek standard continues to shape how European states legislate on denial.

Key Terms & Related Guides

• Dolus specialis: The specific intent to destroy a protected group, in whole or in part, as such. It is what separates genocide from other international crimes.
• Competent tribunal: A national court of the territorial State or an international penal court (Article VI), or the ICJ for State responsibility (Article IX).
• Non-retroactivity: The general treaty rule that obligations do not apply to acts before the treaty entered into force for a State (Vienna Convention, Article 28).
• Events of 1915: Türkiye's official term for the wartime relocation and the associated deaths. Armenia and many parliaments use “Armenian Genocide.”
• Joint Historical Commission: The 2005 Turkish proposal for historians from Türkiye, Armenia and third countries to examine all archives.
• Zurich Protocols (2009): Signed by Türkiye and Armenia on 10 October 2009 and never ratified. They included a sub-commission on the historical dimension.
• ASALA / JCAG-ARA: Armenian militant organizations that attacked Turkish diplomats between 1973 and 1984. Their activity is part of the political backdrop of the debate.

Related reading on this site: About Horizon Politics: Mission, Method and Transparency, Editorial Principles: Sourcing, Attribution and the Fact–Position Divide, Reader FAQ: Sources, Method and Perspective at Horizon Politics, and the Horizon Politics home page. Sister publications offer further documentary perspectives from Regional Order and Archive of Nations.

Perspective Note: Horizon Politics presents global affairs with a dedicated perspective from Türkiye. Sections marked “Türkiye's Position” reflect official Turkish policy as stated by Turkish government sources. Horizon Politics presents Türkiye's official positions and legal arguments as a distinct perspective within the international debate, alongside competing views where relevant. Claims are attributed to primary sources such as treaties, UN documents, official archives and public statements, so that readers can verify them independently. — Horizon Politics Editorial Team