After World War I, the effort to prosecute Ottoman war criminals was an international project taken up by the Allies and various Ottoman governments.
The Ottoman government organized its own series of courts martial in 1919–1920 to prosecute war criminals, but these failed on account of political pressure. The main effort by the Allied administration that occupied Constantinople fell short of establishing an international tribunal in Malta to try the so-called Malta exiles, Ottoman war criminals held as POWs by the British forces in Malta. In the end, no tribunals were held in Malta.
Taner Akçam states that protecting war criminals from prosecution became a key priority of the Turkish nationalist movement. According to European Court of Human Rights judge Giovanni Bonello the suspension of prosecutions, the repatriation, and release of Turkish detainees was amongst others a result of the lack of an appropriate legal framework with supranational jurisdiction, because following World War I no international norms for regulating war crimes existed. The release of the Turkish detainees was accomplished in exchange for 22 British prisoners held by the Turkish nationalists.Turkey's EU Minister, Judge Giovanni Bonello and the Armenian Genocide – 'Claim About Malta Trials Is Nonsense'. The Malta Independent. 19 April 2012. Retrieved 10 August 2013
Since there were no international laws in place under which they could be tried, the men who orchestrated the Armenian genocide escaped prosecution and traveled relatively freely throughout Germany, Italy, and Central Asia.Power, Samantha. "A Problem from Hell", p. 16-17. Basic Books, 2002. This led to the formation of Operation Nemesis, a covert vigilante operation conducted by ARF during which Ottoman political and military figures who fled prosecution were assassinated for their role in the Armenian genocide.
Background
State of international law Following the reportage by Henry Morgenthau, Sr., US Ambassador to the Ottoman Empire, of the Armenian resistance during the Armenian genocide at the city of Van, the Triple Entente formally warned the Ottoman Empire on 24 May 1915 that: In the view of these ... crimes of Turkey against humanity and civilization ... the Allied governments announce publicly ... that they will hold personally responsible ... all members of the Ottoman Government and those of their agents who are implicated in such massacres.William S. Allen, The Nazi Seizure of Power: The Experience of a Single German Town 1922–1945, Franklin Watts; Revised edition (1984). Also see: William A. Schabas, Genocide in International Law: The Crimes of Crimes, Cambridge University Press, 2000, pp. 16–17The Allies warning to prosecute Ottoman commanders of crimes against humanity was the first time such a legal framework was articulated. They were to face criminal prosecution of participating in such acts, regardless of rank or authority. This principle later formed the legal framework of the 1946 Nuremberg trials against German war criminals, and became enshrined in international law in the United Nations' Convention on the Prevention and Punishment of the Crime of genocide. Previous international law: e.g. Hague I or Hague II, made no provision regarding an army against its own people. In fact, the Hague conventions provided the legality for the right of reprisal, which was invoked to justify repression and maintenance of sovereignty in colonial empires. Especially lacking were principles to hold politicians responsible to military operations they did not have a direct role in. The events of World War I brought to light new discussions over international law in the Paris Peace Conference: codifying a state's duty to protect its own citizens, and also other states' citizens.
The Ottoman Empire was party to the 1856 Treaty of Paris, which attached the state to the Concert of Europe and international law, and both Hague Conventions. It also was bound to guarantee Armenian security and prosperity through the 1878 Treaty of Berlin and the 1914 Treaty of Yeniköy. Over the course of World War I, the CUP governments withdrew from Yeniköy, Paris, Berlin, the capitulations, as well as the 1871 Treaty of London, which stipulated that powers could not unilaterally withdraw from previously established treaties. Withdrawing from these treaties liberated the empire from what the Unionists thought to be a tyrannical diplomatic regime that only legitimized Western intervention and imperialism in the Ottoman Empire.
The efforts to prosecute Ottoman war criminals was simultaneous with efforts to prosecute German war criminals; there were plans to try Kaiser Wilhelm II before an international tribunal. Early on however, Allied international legal experts concluded that charges against Wilhelm for perpetrating wars of aggression and violations of sovereignty were not considered crimes under international law, in addition to his own political immunity and as citizen of a sovereign country. Also challenging for legal theorists was the potential application laws ex post facto, should the path of a new framework for international law be taken.
Attitudes towards Turks and Armenians in Allied press
Debates over victimhood and responsibility The Ottoman Chamber of Deputies, elected in the winter of 1913-1914, was controlled by the CUP and the Unionist president Halil Menteşe throughout the war. During that time it served as a rubber stamp for its Central Committee, so debate over conduct of the war was at a minimum. The fallout of the Armistice of Mudros broke the Chamber's seal of silence, prompting deputies to seek clarity on the government's actions relating to the war. In a dramatic legislative session on 4 November 1918, Emmanouil Emmanouilidis delivered a speech asserting government policy in the war resulted in the murder and expulsion of up to 2 million Greeks and Armenians, that CUP leaders benefited from confiscated Armenian property, and the Ottoman Empire joined the Great War without justification. He held those responsible and deserved punishment to be Talât and his CUP comrades. The Greek and Armenian deputies inquired the scope and abuses of the Temporary Law of Deportation -the Tehcir Law. Turkish CUP deputies evaded accusations claiming casualty figures were exaggerated, Turks also suffering from war time conditions too, and insufficient loyalty of Ottoman Armenians: some Ottoman Armenians joined the Russian army and participated in the Lake Van massacre of Muslims.
In future sessions of parliament, talk of war crimes often turned into heated arguments between Greek and Armenian MPs and Turkish MPs. Some MPs asserted it was not mere individuals but an entire political movement responsible, and that the entire Turkish nation bore collective responsibility for supporting the CUP, which drew harsh responses from Turkish deputies. A government official declared to the deputies that without proof further discussion over the issue would serve no purpose than divisiveness in the Chamber, therefore the official government position to deny culpability would be continue. On 21 December Sultan Mehmed VI dissolved the Chamber of Deputies.
Investigations The government established several commissions of inquiry to examine the CUP cabinets' actions. Motivating them was not only to understand the actions of the government since 1914, which was opaque even to most of the cabinet, but punishing war criminals would satisfy the empire's Christian population and the Allies, which were implementing their own investigations and war crimes trials in the Istanbul occupation authority. The most notable Ottoman committee of inquiry was the one from the Chamber of Deputies' Fifth Department.
Investigation by the Parliament The Chamber established a committee of inquiry to investigate the cause of Turkey's entry into the Great War. The Chamber would also accept Fuat Bey of Divaniye's proposal to establish a High Court of Justice to try former members of the Said Halim and Talât Pasha cabinets involved in prosecuting a war of aggression and killing of Armenian non-combatants.
Inquiry by the Parliament's Fifth Department to gather evidence lasted about a month. It became clear that the decision to enter World War I was taken without the knowledge of most of the cabinet. According to testimony the government was unaware and uninvolved in policies to murder non-combatants, meaning the genocide was accomplished extra-legally. Likewise, the government was unaware of the Special Organization's existence. The Interior Ministry, responsible for the deportations, thwarted existing commissions of inquiry that were investigating irregularities in the deportations. Many deportees were deported from places far from theaters of war and subsequently executed outside of military sectors.
However there were issues with the committee of inquiry, there were key witnesses that were not available to testify, the CUP leaders that escaped the capital on November 5th: Talât, Enver, Cemal, Doctor Nazım, Doctor Şakir, and Cemal Azmi. The committee was derived from the parliament, which was elected in 1914 before the war and included CUP members, leading to calls for new elections to promulgate a more powerful committee of inquiry.
Once the parliament was dissolved the minutes and work was transferred to the extraordinary court martial.
Said Halim Pasha's testimony Said Halim Pasha revealed the lack of control and knowledge the government had over the CUP. Questioned of his government's secret alliance with Germany, Said Halim Pasha lied to say he was unaware of his ministers' dealings with German diplomats, even though German diplomatic communications confirmed his involvement. He asserted the treatment of Armenian deportees was normal and necessary due to Armenian nationalist rearguard actions, but believed the implementation of the deportation a "disaster" and something he wasn't responsible for. Said Halim claimed he only learned of atrocities committed after they happened, and directed the chairman of the commission to investigate the War and Interior Ministry.
Collective responsibility vis a vis partition