Genocide Under the Ottoman State: Nationalistic Co-Optation of Classical Legal Paradigms and Responses to Western Interference

Instigated by fear of foreign influence in state law, Ottoman Empire leadership employed policy mechanisms in order to legally legitimize the genocide of the Armenian population in 1915—"illegal process [made to] look legitimate by using the veil of the law." [1] As the state shifted the legal status of religious minorities throughout the 19th century, norms of classical Islamic law were co-opted for nationalistic propaganda. The Young Turks feared relinquishing legal sovereignty to foreign powers—foreign powers which appeared to empower Anatolian Armenians as proxies of influence. At the same time, foreign influence was unavoidable in the shaping of the Ottoman Empire's legal justification framework: German militaristic culture was used to support the creation of the Ottoman state's legal mechanism of deportation. This article   will explore examples of foreign influence—and refute conceptions of shari'a involvement—in legal mechanisms which justified the program of genocide: the Provisional Law of 1914, the ordinance for transit and food rationing standards, and the redistribution law.

The 1839-1876 Tanzimat—the intended modernization of classical Islamic law—sought to grant "full legal equality" to the Ottoman Empire’s religious minorities, in state-viewed contrast to the dhimmi system as outlined by the shari'a. "Full legal equality" in this case is defined by Mark Movsesian, Director of the St. John's School of Law Center for Law and Religion, as equality in taxation and military service, and as ending the illegality of apostasy of Islam. [2] The Tanzimat "New Order" produced… “a new legal culture, operated at the nominal instigation of the sultan who, for the first time in the history of the Empire (and of Islam as a whole), placed himself as well as his bureaucratic legislative council above the shari'a." [3] It was built at the urging of European diplomats who sought to empower Christian minorities as proxies of European influence within the Empire. [4]

Throughout the 19th century, European powers had been granting Ottoman Christians citizenship within the Ottoman Empire, so that "these people were able to make use of the treaty rights known as the capitulations." [5] Capitulations entailed the Ottoman state's relinquishment of jurisdiction over subjects of a foreign state; they were "not without corresponding Ottoman resentment and a profound perception that these concessions seriously impinged on the Empire's sovereignty." [6] The Tanzimat reforms entailed the modernization of law that allowed for further acquiescence to European influence: conceptions of "equality" for religious minorities were based in European standards, conceived for further benefit of European powers. Movsesian argues that "the Armenians' attempt to assert equality" was as a result of European urging. State-propagated resentment of Armenians indeed did arise from the fact that they were granted "equality" in and of itself, but from the notion that that instatement of "equality" was at the hands of external powers, in using Ottoman Christians as proxies of European influence. [7] Whether or not the Armenians themselves were actually involved in influencing the Tanizamat's reordering is not the crucial point: regardless, Armenians were presented by the Young Turks as agents of foreign states. This propaganda resulted in the Turkish majority “turning a blind eye” towards the eventual deportation of Armenians. As early as 1856, Tanzimatçis Mustafa Rasid worried about the "possibility of a great slaughter in connection with efforts to establish equality through public laws." [8]

 The failure of the Tanizimat’s attempt at full equality also further frustrated a small group of revolutionary Armenians, which “occasioned increasingly brutal repression by the government—" a cycle of violence ensued between the Armenian military “threat” and the Ottoman state. [9] Given the so-called "cycle of violence," foreign influence in the status of religious groups may have served to increase inter-religious tension in the Ottoman Empire. Additionally, foreign interference in legal sovereignty—and direct foreign military culture influence—directly shaped the Young Turks' legal programming, which ultimately damned Armenians residing in Ottoman territory.

At the time of the 1908 revolution, the Young Turks had initially fostered a legally accommodationist stance with Armenian nationalists, as the notion of a Second Constitution, and a more secular Ottoman Empire, held appeal for both groups. Several legal concessions were offered to the Armenians, including allowing them to contest parliamentary seats as citizens, and allowing convening of the Armenian National Assembly, which had formerly been banned under the sultanate. [10] Given the historical attempts at the Ottoman state's incorporation of religious minorities in a pluralist Islamic legal system, and given the Young Turks' legal concessions towards the Armenian population during the onset of their time in power—both indicative of an initially symbiotic attitude—one must assert that the change in Ottoman laws regarding the Armenians were not a result of fundamental opposition, but as a result of some exterior instigation. In 1912, after the Ottoman Empire was defeated in conflict in the Balkans, Young Turk fear of susceptibility to exterior forces grew more prominent. "The territorial losses and European opportunism narrowed the Young Turks' relatively pluralistic Ottomanist ideology to one espousing Turkish identity and nationalism." [11] This, coupled with the aforementioned Ottoman state propaganda regarding religious hierarchy, and pre-existing tension arising from failed Tanzimat revisions on the legal status of religious minorities, led to widespread suspicion that the Armenian population was poised for a mass uprising. [12]

Similarly to 19th century European attempts at capitulations of Armenian proxies, the Reform Agreement of 1914 was an apparent foreign legal imposition that took place in the Young Turk era, predating the onset of the Armenian deportations. Through this agreement, Russia established Armenian autonomy in specified areas of Anatolia, and gave itself permanent influence in Turkey—such as the Russian right to appoint all officials and provisional judges in the Armenian regions. [13] U.S. Ambassador Henry Morganthou noted that Serbia was the only dominion of the sultanate's to have won independence, while "'Russia, France, and Great Britain have set free all' the other Christian peoples in the Ottoman Empire." [14] Goals of reducing foreign interference—and the potential growth of a foreign-supported Armenian state—in Turkish sovereignty led the Ottoman State to seek revocation of the Agreement, which was viewed as possible only through militaristic undertaking. The Ottoman Empire thus began to use a strategy of "collective repression," which would rely upon legal mechanisms. [15]

Foreign influence was also at play in the legal mechanisms themselves. While the Ottoman Turks sought to escape infringement upon sovereignty by European powers, they nevertheless could not avoid relying upon the support of their German ally for their expertise in deportation policy: in 1904-1908, Germans consolidated and deported ethnic Herero during the genocide enacted in South West Africa—ethnicity-based deportation schemes were employed in the legal structuring of Armenian deportation. Germany’s—contractually agreed upon—allyship with the Ottoman Empire was itself a legal mechanism through which German officers were inclined to credulity of Ottoman propaganda regarding Armenians, and through which the ruling Committee of Union and Progress (CUP) eventually sought to use German support to create a modern, homogeneous state free of foreign tutelage. [16] Policy-making power in the Ottoman state was ultimately attributed to the German military mission, according to allied contemporaries. [17] Effectively, European influences were at odds with one another—various powers seeking earlier to use Armenians as influential proxies, and the Germans seeking to help their allies expel them—in the legal arena which ultimately dictated the fate of the Armenian population in the Ottoman Empire.

Orders for deportation of Armenians from six eastern provinces came from Minister of the Interior Talât Pasha on May 31st, 1915, and went directly to Special Organization ("armed irregulars used for guerilla warfare") units. [18] This order followed the August 1914 onset of "extortion and murder campaigns'' at the hands of such Special Organizations. German military influence can be linked to the legal documents that justified the orders: German officers had recommended specific regional deportations, which encompassed the "entire Armenian population of an area, not just draft-age males." [19] The Provisional Law of May 27th, 1915—approved by German official General Goltz as consistent with German military practice—was the primary legal cover for the death which resulted from deportation, giving Ottoman military commanders “in the case of military necessity, or when spying or treason are suspected, [the power] to remove inhabitants individually or en masse from villages or cities and settle them in other areas." [20] In October 1915, Lieutenant Colonel Bottrich even appended his signature to a legal proclamation from the Turkish War Ministry, to enact the deportation of 848 Armenian railroad workers from Berlin-Baghdad railway. This is indicative of explicit German endorsement for the goal of this legal mechanism.

Following the CUP's issuance of the 1914 Provisional Law, Armenians were prohibited from selling, renting, or transferring their properties under Abandoned Properties Laws. Armenian properties were then impounded by the state and appropriated by "committees formed in a special manner," most importantly the Abandoned Properties Commissions, whose powers were regulated by Articles 23 and 24 of the Regulation of June 10th, 1915. [21] In addition to that which was distributed amongst former community members, some of the confiscated wealth was used to entirely pay the debts owed by Armenians to foreign entities, with no legal pathways for Armenians to appeal this decision. Taner Akçam, Turkish-German historian of the Armenian genocide, and Ümit Kurt, and historian of the late Ottoman Empire at the University of Newcastle, note that "in this way, any possible [future] intervention of foreign powers, especially Germany, would be prevented." [22] If Kurt's assessment is accurate, it would be evident that although German military influence was a crucial support in the project of deportation, the Young Turks sought to deter avenues for German interference in Ottoman programs.

On July 10th, 1915, an operative network of transit sites was formally instituted through an Ottoman administrative ordinance, entitled DH.SFR 54/413, IAMM in the Turkish Prime Ministerial Archive. [23] This is another legal mechanism used to justify state actions which led to mass destruction of life. While the ordinance for this structure was meant to ensure “comfort and security” of the deportees, the reality of the transit sites established through this ordinance were far more bleak. According to Khatchig Mouradian, Armenian Area Specialist at the Library of Congress and professor at Columbia University, they "became de facto concentration camps," where thousands of Armenians without means of self-sustenance often received less than a mandated 178 grams of daily rations—if  any, given that distribution was arbitrarily discontinued for weeks. [24] This bureaucratic legal framework diffuses responsibility for such shortcomings from the individual officers to the ordinance itself. The ordinance as a legal mechanism, in addition to the Provisional Law of 1914 and the Abandoned Properties Laws, tools of perverse legitimization of deportation of Armenians, were employed by the Young Turks in frustrated response to Western influence on Ottoman sovereignty. In the end, two-thirds of the more than one million Armenians who died under Ottoman control during 1915-1923 died as a direct result of maltreatment under the deportation legitimized by these legal mechanisms. [25]

 Edited by Eva Cullen

[1] Ümit Kurt and Taner Akçam, “The Plunder of Wealth through Abandoned Properties Laws in the Armenian Genocide,” Genocide Studies International 10, no. 1, JSTOR (2016): 38.

[2] Mark L. Movsesian, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” University of St. Thomas Journal of Law and Public Policy 4 (2010): 11.

[3] Wael Hallaq, "Hegemonic modernity: the Middle East and North Africa," Shari’a: Theory, Practice, Transformations, (Cambridge University Press, 2009): 405.

[4] Mark L. Movsesian, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” University of St. Thomas Journal of Law and Public Policy 4 (2010): 10. 

[5] Ümit Kurt and Taner Akçam, “The Plunder of Wealth through Abandoned Properties Laws in the Armenian Genocide,” Genocide Studies International 10, no. 1, JSTOR (2016): 45.

[6] Wael Hallaq, "Hegemonic modernity: the Middle East and North Africa," Shari’a: Theory, Practice, Transformations, (Cambridge University Press, 2009): 345.

[7] Mark L. Movsesian, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” University of St. Thomas Journal of Law and Public Policy 4 (2010): 10.

[8] Mark L. Movsesian, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” University of St. Thomas Journal of Law and Public Policy 4 (2010): 15.

[9] Mark L. Movsesian, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” University of St. Thomas Journal of Law and Public Policy 4 (2010): 14.

[10] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 133.

[11] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 133.

[12] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 143.

[13] Isabel V.  Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany, (Cornell University Press, 2005): 266.  

[14] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 140. 

[15] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 144.

[16] Isabel V.  Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany, (Cornell University Press, 2005): 266.

[17] Isabel V.  Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany, (Cornell University Press, 2005): 269.

[18] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 153.

[19] Isabel V.  Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany, (Cornell University Press, 2005): 276.

[20] Isabel V.  Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany, (Cornell University Press, 2005): 276.

[21] Ümit Kurt and Taner Akçam, “The Plunder of Wealth through Abandoned Properties Laws in the Armenian Genocide,” Genocide Studies International 10, no. 1, JSTOR (2016): 31.

[22] Ümit Kurt and Taner Akçam, “The Plunder of Wealth through Abandoned Properties Laws in the Armenian Genocide,” Genocide Studies International 10, no. 1, JSTOR (2016): 43.

[23] Khatchig Mouradian, The Resistance Network: The Armenian Genocide and Humanitarianism in Ottoman Syria, 1915–1918, (Michigan State University Press, 2021): 181.

[24] Khatchig Mouradian, The Resistance Network: The Armenian Genocide and Humanitarianism in Ottoman Syria, 1915–1918, (Michigan State University Press, 2021):  62.

[25] Ahsan I. Butt, “The Ottoman Empire’s Escalation from Reforms to the Armenian Genocide, 1908–1915,” Secession and Security: Explaining State Strategy against Separatists, (Cornell University Press, 2017): 148.