Vladimir Vardanyan
As expected, adoption of Resolution 106 by the Committee on Foreign Affairs of the House of Representatives at the first session of the 110th U.S. Congress on recognition of the Genocide of Armenians had a tremendous resonance in the United States and the whole world. However, the adoption of this legal act was predictable, if one takes into account the accelerating process of recognizing the fact of the Genocide of Armenians by parliaments of various countries, as well as multiple attempts of the U.S. Congress to pass such resolution, which have taken place during the recent decade. They have failed because of the direct pressure by the Administration of the U.S. President. Unfortunately, such pressure, accompanied with the Turkish open diplomatic and military-political blackmail, this time again actually blocked the adoption of the Resolution by the House of Representatives.
It is necessary to note that publications and expert opinions, followed the adoption of the Resolution by the Committee, rather discussed its consequences and reasonability than the juridical nature and political and legal essence of the document, which have mostly remained unclear. That is why the mentioned issues will be discussed in this article.
1. The juridical essence of the document
In order to answer the question about the impact that the adoption of the mentioned Resolution by the House could have on the process of the recognition and condemnation of the Genocide of Armenians, it is necessary to discuss the essence of the legal document, we are dealing with. In accordance with the U.S. Constitution and legislation, each of the chambers of the Congress – the House of Representatives and the Senate – are both empowered to adopt appropriate legal acts: bills (laws), resolutions and orders. Resolutions, adopted by the Congress, are divided into joint, concurrent and simple ones.
Joint Resolutions, for the adoption of which it is required agreement of the both chambers, actually do not differ from the bills either by the procedure of their adoption, or by the nature of the provisions, regulated by them. Quite often changes in the acting laws are introduced by joint resolutions, and to the contrary, changes in the joint resolutions are introduced by laws. Like bills, the joint resolutions are binding, so they must be submitted to the President for signature. For example, draft constitutional amendments are adopted as joint resolutions.
Unlike the above-mentioned ones, Concurrent Resolutions are adopted separately by the two Houses of the Congress by the proposal of any of them. They mainly relate to the activity of the Houses, have no normative nature and do not require the Presidential consent.
Another type of acts to be adopted by the House of Representatives and the Congress is Simple Resolutions. They are adopted by the House of Representatives and are called also as House Resolutions. They are not binding, and their adoption does not require the Senate approval or the signature of the U.S. President.
Resolution 106, which was adopted by the Committee for Foreign Relations of the House of Representatives and officially called “Affirmation of the United States Record on the Armenian Genocide Resolution,” is an example of the Simple Resolution. It is not binding or obligatory for execution by the President or any other bodies of the state governance of the United States of America. However, it is necessary to note that both national and international mass media were a little hasty with “celebrating” adoption of Resolution 106. Formally, it is too early to call it resolution in the full meaning of the word as far as it has been only approved in the appropriate committee.
So what does the “appropriate committee” mean? Both Houses of the U.S. Congress have a complicated and quite a ramified system. For example, the House of Representatives has more than twenty standing committees, created for organization of the law-making activity by appropriate directions, and the Committee on Foreign Affairs is one of them.
As a whole, the role and importance of the standing committees in functioning of the Congress are very high. The Regulations of the Houses quite clearly fix the subject competence of each of Committees, singling out those issues that are under their jurisdiction. Standing Committees play a significant role in the law-making process. The destiny of draft bills, submitted to consideration of the Congress, mainly depend on decisions of the Committees, which is proved by the fact that approximately 90% of all draft bills and other documents, approved by a Committee, are passed by the Houses almost without changes. So the following President Woodrow Wilson’s words defining the role of the Committees seem fresh up to the present: “The Congress at session – is an exhibition Congress; the Congress in Committees – is a working Congress.”[1]
In this connection it seemed that after the approval of Resolution 106 in the appropriate Committee there would be no problems for its final adoption, as far as it should have got formal support of the majority in the House of Representatives, consisted of 435 members, i.e. the votes of 218 Congressmen. When the Resolution was approved by the Committee, it was supported by 226 Congressmen, which was enough for the approval during the session of the House of Representatives. However, it is necessary to note that the mentioned number (226) was just a little higher than the required (218) number of votes. Immediately after the adoption of the Resolution by the Committee it was clear that if during the voting by the House 9 or more Congressmen abstained or voted against, then the Resolution would be rejected. Another circumstance should be taken into account: even during the voting at the appropriate Committee 27 members of the Committee voted for, but 21 members – against, so the proportion was 56,2% against 44,8%.
Anyway, even in such situation the Resolution is a fact that cannot be ignored, and that is why it will be reasonable to consider its structure and contents.
2. The Structure and Political and Juridical Components of the Resolution
Resolution 106 consists of Preamble and three sections: Section I “Short Title,” Section II “Findings” and Section III “Declaration of Policy.” Preamble calls upon the President of the United States to ensure that the foreign policy of the United States reflects appropriate understanding and sensitivity concerning issues related to human rights, ethnic cleansing and genocide.
Section I “Short Title” just indicates that it can be referred to as “Affirmation of the United States of America on the Armenian Genocide Resolution.” From the first glance it might seem that this Section is just technical. But the analysis the very title of the Resolution can show that it has a conceptual novelty. According to the title, it is not a resolution, recognizing the fact of the Genocide, but that affirming availability of information on the Armenian Genocide in the official documents of the United States. In other words, it speaks about affirmation of the recognition of the Genocide, and not recognition of its fact, which, in our opinion, has some political and juridical advantage, bringing to naught the blames against the U.S. Congress in revision of history, voiced by the official Ankara from time to time.
Section II “Findings” of the Resolution is its main substantial part, as far as its 30 points scrupulously provide the basic evidences, confirming the fact of the Genocide of Armenians and its recognition by the United States of America.
From the political and legal points of view it is necessary to focus on the following positive aspects of the factual part, reflected in the Resolution:
1) Unlike the resolutions, recognizing the Genocide of Armenians, adopted by the parliaments of other states, as well as previous attempts to adopt such a resolution by the U.S. Congress, this one provides enlargement of the chronological limits of conducting the crime of genocide, covering the period of 1915-1923.
2) From the legal view, the following circumstance should be pointed out: the Resolution not only recognizes the fact of conducting the crime of genocide against the Armenian population, but also affirms that it was “conceived and carried out by the Ottoman Empire,” thereby stressing responsibility of the Ottoman Empire for conducting that crime.
3) The reference to the Joint declaration of Great Britain, France and Russian Empire of May 24, 1915 is also important, because it condemns the action against the Armenian population, for the first time mentioning the term “crime against humanity.”
4) Reference to the fact of the post-war condemnation of the actions of crime against Armenians by the Government of the Ottoman Empire and the trials of the main criminals is also justified from the legal point of view.
5) Reference to the facts, proving the act of Genocide against Armenians in archives of many countries, and affirmation that all these different sources are evidence of the same events and consequences just come to support the “proving base” of the Resolution.
6) Perfection of the Resolution is even increased by recognition of the fact that information, affirming the crime of Genocide against Armenians, is available in the national archives of the United States, as well as by the reference to a number of Resolutions of the U.S. Congress of 1916-1920, directly or indirectly affirming the fact of the Armenian Genocide.
7) It is significant that the Resolution cites Raphael Lemkin (the author of the concept of the crime of genocide, who introduced the term of “genocide” into the international law), who mentioned the Armenian Genocide as one of the apparent cases of genocide, which had taken place in the 20th century.[2]
8) It is important from the view of the international legal recognition that Resolution also provides reference to the study made by Benjamin Whittaker for the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1985.
9) Finally, it is very important that Resolution is preventive, i.e. it is not only aimed at affirmation of the fact of the Armenian Genocide, but also the general prevention of the genocide cases in the future.
The final Section of the Resolution “Declaration of policy” actually has a resolute nature, i.e. it reflects the opinion of the House on the proper behavior of the U.S. President on this issue. The House of Representatives:
(1) calls upon the President to ensure that the foreign policy of the United States reflects appropriate understanding and sensitivity concerning issues related to human rights, ethnic cleansing, and genocide documented in the United States record relating to the Armenian Genocide and the consequences of the failure to realize a just resolution; and
(2) calls upon the President in the President’s annual message commemorating the Armenian Genocide issued on or about April 24, to accurately characterize the systematic and deliberate annihilation of 1,500,000 Armenians as genocide and to recall the proud history of United States intervention in opposition to the Armenian Genocide.
Some preliminary conclusions
We think that the role and importance of Resolution 106 should not be under- or over-estimated. It should not be forgotten that even in case of its final adoption by the House of Representatives, it will be a document with recommendation force (as practically all other resolutions on recognition of the Genocide with one exception: France adopted an appropriate law). On the other hand, the fact that the Resolution has a recommendation force and does not require approval of the Senate and/or President, although “lowers” its juridical force, but has a substantial positive importance, practically bringing to naught any attempts to block its adoption in the Senate or refusal of the President to promulgate it.
Otherwise, taking into account the competence and functions of the Senate and President of the USA, it could have remained as a resolution, not signed by the President, or, in the worst case, just a draft that has not been realized.
Referring to the actual delaying of voting Resolution 106 for an indefinite period, it is necessary to note that although it is an undesirable measure in the available situation, an obligatory measure, which is more in the interests of its supporters than opponents. It is better to have a resolution, passed in the appropriate Committee, not submitted for consideration of the House of Representatives, than one rejected by House because of the lack of the required number of votes. Anyway, we are confident that this issue has not finished at all. In such an indefinite state the Resolution will be something like the sword of Damocles, hung over the Bush Administration, and any changes in the political situation may bring the Resolution back to consideration by the House of Representatives.
One should not forget that the status of the House of Representatives, as well as other legislative bodies, in the light of the international law does not suppose their consideration as bodies of foreign relations of the state, so they do not express the official point of view on the foreign political issues. Based on the practice of relations of the Congress with the executive power, one might suppose that even after the final adoption of the Resolution the George Bush Administration could declare (and most probably, they will declare it) that they do not share the view of the law-makers, but had no appropriate constitutional leverages to prevent it.
In conclusion it is necessary to note that in case of approval by the U.S. Congress, even as a recommendation, Resolution 106 will have a significant political importance, remaining in operation not only related to the George Bush Administration, but administrations of the next presidents. In this context, in our opinion, the Resolution will be more “obligatory” in case if a candidate of the Democratic Party wins the Presidential elections of 2008, because it will be much more difficult for him/ her to ignore its provisions.
[1] Woodrow Wilson. Congressional Government. Baltimore, John Hopkins Univ. Press, 1981, p. 69
[2] В 1946 году Рафаэль Лемкин опубликовал статью «Преступление без названия» (“A crime without a name.”) в журнале “American Scholar” (Volume 15, no. 2 (April 1946), p. 227-230), в которой, в частности, указал: «Ясно, что германская практика [геноцида] наиболее поразительная и наиболее предумышленная, но история дает нам представление об иных случаях уничтожения целых народов, этнических и религиозных групп. Такими являются, например, уничтожение Карфагена, уничтожение религиозных групп в ходе войн ислама и крестовых походов; уничтожение альбигойцев и вальденцев и совсем недавнее уничтожение армян». («…and more recently, the massacre of the Armenians»).
November 1, 2007