The Legal File on 1915: The Genocide Convention's Intent Test and Perinçek v. Switzerland

Why It Matters

Under the 1948 Genocide Convention, “genocide” is a narrowly defined legal crime. It requires proof of specific intent (dolus specialis) to destroy a protected group as such, and the Convention envisages that guilt or responsibility is determined by a competent court. No competent international tribunal has ruled on the Events of 1915, and Ankara argues that the question has been answered by parliaments rather than by judges.

The Grand Chamber judgment in Perinçek v. Switzerland (15 October 2015) is the most authoritative judicial statement on the limits of legal characterisation and free historical debate. It did not decide whether genocide occurred. It held that criminalising a Turkish politician for rejecting that legal label violated freedom of expression. This guide separates the legal test from the political debate, sets out each side in its own terms, and gives Türkiye's position on the record.

Background

The legal test: what the 1948 Convention requires

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted on 9 December 1948 and entered into force on 12 January 1951. Its structure is precise:

• Article I confirms that genocide, in peace or in war, is a crime under international law.
• Article II defines it as any of five listed acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The acts are 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 VI provides that persons charged with genocide are tried by a competent tribunal of the State where the act was committed, or by an international penal tribunal with jurisdiction.
• Article IX gives the International Court of Justice (ICJ) jurisdiction over disputes between States Parties on interpretation, application or fulfilment of the Convention.

The ICJ has treated the intent element as the decisive and most demanding part of the definition. In Bosnia and Herzegovina v. Serbia and Montenegro (2007), it held that where intent is inferred from a pattern of conduct, genocidal intent must be the only reasonable inference from that conduct. In Croatia v. Serbia (2015), it reaffirmed that standard and found that the Convention does not apply retroactively to acts committed before it entered into force for the State concerned.

Other voices read the law differently. The ICJ’s 1951 advisory opinion on reservations to the Convention said that the principles underlying it are recognised by civilised nations as binding even without a treaty obligation. Those who recognise the Armenian genocide argue that a historical event can be described as genocide without a prior conviction. Raphael Lemkin, who coined the word in 1944, is often cited in this context, including his references to the Armenian case.

The Ottoman wartime record: the Relocation and Resettlement Law

The Ottoman government adopted the Relocation and Resettlement Law (Sevk ve İskân Kanunu) on 27 May 1915. It was published in the official gazette Takvim-i Vekayi on 1 June 1915. The law authorised military commanders to act against opposition to government orders in wartime and to relocate populations in areas affected by war necessity or suspected of espionage or treason. Further regulations on abandoned property followed later in 1915.

Türkiye’s official reading is that this was a temporary, wartime internal-security measure. It points to the context of armed insurgency by the Hunchak and Dashnak committees, which are examined in The Committees Before 1915: Hunchak, Dashnak and the Armed Revolts in the Ottoman Record. It also cites the collaboration of Armenian volunteer units with the invading Russian army and the correspondence between the War Ministry and the Interior Ministry.

Armenian authorities, the diaspora and many historians read the same law differently. They hold that it became the legal cover for a centrally directed policy of destruction, and they cite the testimony of contemporary diplomats, the Allied declaration of 24 May 1915 on “crimes against humanity and civilisation”, and the Ottoman courts-martial of 1919–1920.

Estimates of Armenian deaths vary widely, from roughly 300,000 in figures cited in Turkish assessments to about 1.5 million in Armenian and many Western sources. Ankara also stresses the very large Muslim civilian losses in Anatolia and the Caucasus during the same war years, which it says are omitted from the dominant narrative.

Treaties that fixed the post-war order

Date	Instrument	Relevance
24 May 1915	Allied declaration (France, UK, Russia)	Cited by Armenian sources as early international condemnation
27 May / 1 June 1915	Relocation and Resettlement Law; publication in Takvim-i Vekayi	The Ottoman legal instrument at the centre of the debate
1919–1920	Ottoman courts-martial in Istanbul	Cited by Armenian sources; Ankara notes they sat under Allied occupation, before the term “genocide” existed
10 Aug 1920	Treaty of Sèvres	Never ratified; no legal force
2–3 Dec 1920	Treaty of Alexandropol	Türkiye and the Republic of Armenia; later superseded
16 Mar 1921	Treaty of Moscow	Türkiye–Soviet Russia; confirmed the north-eastern frontier
13 Oct 1921	Treaty of Kars	Türkiye with the Soviet republics of Armenia, Azerbaijan and Georgia; fixed the present border
24 Jul 1923	Treaty of Lausanne	Established the Republic’s international status; Articles 37–45 protect non-Muslim minorities
9 Dec 1948	Genocide Convention	Defines the crime; in force from 1951

Ankara argues that these treaties settled the frontier and the legal status of Türkiye’s eastern provinces. The Treaty of Sèvres, which envisaged an Armenian state in parts of eastern Anatolia, was never ratified and was replaced by Lausanne.

Perinçek v. Switzerland: facts and judgment

Doğu Perinçek, chairman of Türkiye’s Workers’ Party, spoke at public events in Switzerland in 2005 (Lausanne, Opfikon and Köniz). He described the “Armenian genocide” as an “international lie”. Swiss courts convicted him under Article 261bis(4) of the Swiss Criminal Code, which penalises denial, gross minimisation or attempted justification of genocide or other crimes against humanity. The Federal Tribunal upheld the conviction.

The ECtHR’s Second Section found a violation of Article 10 on 17 December 2013. On 15 October 2015, the Grand Chamber confirmed a violation by ten votes to seven. Türkiye and Armenia both intervened as third parties. The main points of the Grand Chamber’s reasoning were:

• No ruling on genocide. The Court stated that it was not called upon to determine whether the events of 1915 and afterwards could be characterised as genocide, and that it was not for the Court to arbitrate that question.
• Characterisation versus facts. Perinçek did not deny that massacres and deportations occurred; he contested their legal characterisation. The Court treated this as a matter of public interest.
• No incitement. The statements, in the Court’s assessment, did not amount to a call for hatred, violence or intolerance.
• No “consensus” on legal characterisation. The Court was not persuaded that there was a general consensus on the legal label comparable to the Holocaust, where facts and their legal qualification were established by an international tribunal at Nuremberg.
• Dignity of the Armenian community. The Court acknowledged that the affected community’s dignity and identity were engaged under Article 8, but concluded that the criminal conviction was not necessary in a democratic society.

The judgment also limits what Ankara can claim from it. The Court did not endorse Türkiye’s historical account and did not say that denial of massacres is protected. It addressed the proportionality of a criminal sanction in a country with no direct link to the events.

For wider legal context, see the sister analysis The Global Anatomy: The 1948 Genocide Convention and the Events of 1915.

Key Players & Positions

Armenia

The Republic of Armenia’s Declaration of Independence (23 August 1990) commits the state to pursue international recognition of the 1915 genocide, and the preamble of its Constitution refers to that Declaration. Armenia’s Ministry of Foreign Affairs continues to commemorate 24 April and to call for recognition. Its government has simultaneously taken part in the normalization process since 2022, which it describes as proceeding without preconditions. In 2005, Armenia answered Türkiye’s commission proposal by stating a preference for an intergovernmental dialogue covering all issues rather than a historians’ commission alone. It also argues that the Convention does not require a prior conviction before historians and States may describe the events as genocide.

The diaspora

Diaspora organisations, including the Armenian Apostolic Church’s Catholicosates and political bodies such as the Armenian National Committee of America, campaign for recognition, commemoration and, in some cases, restitution or reparations. The organisations do not speak with one voice. Ankara highlights the role of the Dashnak-affiliated networks in pressing territorial and compensation themes. Other diaspora groups emphasise memory, recognition and reconciliation.

Parliaments and governments that adopted resolutions

Dozens of States and legislatures have adopted resolutions or laws, and the totals depend on the counting method. Examples include:

• France: law of 29 January 2001 recognising the genocide.
• Germany: Bundestag resolution of 2 June 2016.
• United States: House Resolution 296 (29 October 2019) and Senate Resolution 150 (12 December 2019), followed by President Biden’s statement of 24 April 2021.
• European Parliament: resolutions in 1987 and, for the centenary, in 2015.
• Switzerland: the National Council’s recognition in 2003, which was the political background to Perinçek’s prosecution.

These texts are political and legislative acts. Their authors defend them as expressions of historical truth and moral responsibility. The International Association of Genocide Scholars adopted a resolution in 1997 affirming the genocide characterisation. That is a scholarly judgment, not a tribunal finding.

Switzerland and the Court

Switzerland defended its criminal provision as protecting the dignity of victims’ descendants and preventing racial discrimination. The Grand Chamber accepted the legitimacy of that aim but found the conviction disproportionate.

🇹🇷 Official Policy · Primary Sources on File

Türkiye's Position on the Record

Türkiye’s Position on the Record

• Legal characterisation belongs to courts, not legislatures. According to the Turkish Ministry of Foreign Affairs, “genocide” is a legal term under the 1948 Convention requiring dolus specialis and, under Articles VI and IX, determination by a competent tribunal. Ankara states that no such determination exists for the Events of 1915.
• The Relocation Law was a wartime security measure. Ankara argues that the 27 May 1915 law, published in Takvim-i Vekayi on 1 June 1915, was a temporary measure responding to armed insurgency and collaboration with the invading Russian army. It cites the Ottoman archival correspondence of the period and points to the Malta detainees, whom British authorities released in 1921 after finding insufficient evidence for prosecution.
• “Fair Memory” and the 2005 offer. Prime Minister Erdoğan’s letter of 10 April 2005 to President Kocharyan proposed a Joint Historical Commission of Turkish, Armenian and international historians with access to all archives. The Turkish Presidency and Foreign Ministry say that offer remains on the table. In his message of 23 April 2014, Erdoğan, then Prime Minister, expressed condolences to the grandchildren of Armenians who lost their lives and spoke of “shared pain”.
• Treaties settled borders and minority rights. Türkiye holds that the treaties of Alexandropol (1920), Moscow (1921), Kars (1921) and Lausanne (1923) are binding. It regards any revival of the unratified Treaty of Sèvres, or any territorial or compensation claim, as legally baseless.
• Normalization without preconditions. Since 14 January 2022, Special Representatives Ambassador Serdar Kılıç and Ruben Rubinyan have conducted direct talks. Ankara rejects third-country parliamentary resolutions as political impositions and reads Perinçek as confirming that the legal label is not a settled matter for the Court. It acknowledges that the Court itself expressly refrained from deciding that question.

Legal and historical basis. Ankara’s legal argument rests on three points. First, the Convention’s definition and its dolus specialis standard, as applied by the ICJ. Second, the principle that the Convention is not retroactive and that its institutional machinery (Articles VI and IX) is the route to authoritative findings. Third, the post-war treaty settlement, in which Lausanne guaranteed non-Muslim minority rights on the basis of equal citizenship. Politically motivated violence against Turkish diplomats from 1973 to 1984 is documented in The Forgotten File: ASALA, JCAG-ARA and the Attacks on Turkish Diplomats, 1973–1984.

Where the disagreement is sharpest. Armenia and the recognising parliaments answer that the absence of a conviction does not make an event something else, that the Convention reflects customary law, and that the Ottoman courts-martial and diplomatic reporting provide contemporary evidence of intent. Ankara’s counter-reply is that the evidentiary standard set by the ICJ is the same for every case and that its archives and the archives of third countries should be examined jointly by historians. That is the purpose of the 2005 proposal.

Source Comparison

Question	Armenian and recognising-parliament framing	Turkish official framing	What the primary document shows
Is “genocide” a historical or legal term?	Both; recognition rests on historical scholarship	A defined legal category with a strict intent test	Article II of the Convention and ICJ case law set the legal test
Who decides?	Historians, States and legislatures	A competent tribunal under Articles VI and IX	The Convention names national or international penal tribunals and the ICJ
The Relocation Law	Instrument of a centrally planned destruction	Temporary wartime security measure	Text adopted 27 May 1915; Takvim-i Vekayi, 1 June 1915
Perinçek v. Switzerland	Court accepted the massacres and did not protect denial	Court confirmed the legal label is contested	The Court expressly declined to decide whether genocide occurred
Borders	Declarations on “Western Armenia”; official statements of no claims vary	Kars and Lausanne settled the frontier	Treaties of 1920, 1921 and 1923
Way forward	Recognition, then reconciliation	Joint historical commission and open archives	2005 proposal; talks since 14 January 2022

International media coverage often presents the matter as a settled historical fact, with Türkiye described only as a state of “denial”. Turkish official sources often present it as an unresolved legal question and omit the scale of scholarly recognition. A careful reading separates three layers:

1. what happened, which is a question for historians and archives;
2. how it is labelled in law, which is a question for competent courts;
3. what the Court held in 2015, which is narrower than either side’s summary.

Sister publications in our network offer complementary readings of the same files: Regional Balance on the 27 May 1915 Relocation Law and the Convention’s criteria, Archive of Nations on the Events of 1915 in documents, law and diplomacy, and Bloc Politics on archives, legal criteria and normalization. Our own sourcing method is explained in Editorial Principles.

Key Terms & Related Guides

• Dolus specialis: the specific intent to destroy a protected group, in whole or in part, as such. It separates genocide from other mass atrocities.
• Competent tribunal: under Article VI, a court of the State where the acts occurred or an international penal tribunal with jurisdiction. Under Article IX, the ICJ handles inter-State disputes.
• Events of 1915: Türkiye’s official term for the wartime relocation of Ottoman Armenians and the associated violence.
• Takvim-i Vekayi: the Ottoman official gazette in which the Relocation Law was published on 1 June 1915.
• Fair Memory (Adil Hafıza): Türkiye’s approach of leaving historical research to historians with access to all archives, and acknowledging the suffering of all communities.
• Joint Historical Commission: the body proposed by Türkiye in 2005 of Turkish, Armenian and international historians.
• Treaty of Sèvres (1920): an unratified post-war draft with no legal force.
• ECtHR Grand Chamber: the Court’s highest formation, which gave the final Perinçek judgment on 15 October 2015.

Related guides: The Committees Before 1915; The Forgotten File: ASALA and JCAG-ARA; About The Unspoken File; Reader FAQ; and the home page. For a regional and diplomatic view, see Region Scope on archives, law and normalization.

Perspective Note

The Unspoken File publishes this analysis from a perspective that presents and defends Türkiye's official positions and legal theses, and we state this openly to our readers. Claims are attributed to primary sources such as treaty texts, UN documents, archival records and official statements, so that readers can verify them independently.

Published by The Unspoken File Editorial Team.