Updated at 01 Mar 2012
- Diaspora Armenians And Their Initiatives For Compensation: The Reflections Of The Movsesian Case
- California Armenian Genocide Law Overturned by By Bob Egelko
- Comments From The San Francisco Chronicle Readers
- The ruling: US Court Of Appeals For The Ninth Circuit Vazken Movsesian Harry Arzoumanian Garo Ayaltin Miran Khagerian Ara Khajerian
- Letter To The Court & Counter Comments By Sukru Aya
- Why California Armenian Genocide Law Overturned? By Saltzman & Evinch
Diaspora Armenians And Their Initiatives For Compensation: The Reflections Of The Movsesian Case by Aslan Yavuz ŞİR
Diaspora Armenians speeded up their efforts to seek out compensation from Turkey before 2015. Especially the legal and political issues that had been settled with the Treaty of Kars and then the Lausanne Treaty are tried to be brought to the agenda again in the California courts and in the United States. These Armenians who are now US citizens are attempting to utilize the US legal system to seek compensation for the abandoned properties on Ottoman territories or confiscated during relocation and their life insurances made before the relocation. Claiming that the life insurances of the Ottoman Armenians, of which they are the inheritors, were never compensated and were subjected to genocide by the Ottoman government, they were able to obtain successful results from the lawsuits they had filed to French and American insurance companies until now. However, the German insurance company Munich Re has opposed this jurisdiction of US courts. In fact, it could be seen that a decision reached last week has blocked other initiatives that the Diaspora Armenians could have taken before 2015 before the US Courts.
The Fortress of the Diaspora: The State of California
In the state of California where the Diaspora Armenians are most concentrated and organized, an article has been included in the California Code of Civil Procedure in 2000 together with a definition of “Armenian Genocide Victim” within the California legal system. Section 354.4 has introduced a regulation where the “Armenian Genocide Victim” or their heirs seeking benefits under the insurance policies of 1875-1923, could file suits until 31 December 2010 (In 2011, this date has been extended to 31 December 2016). Therefore, some individuals, asserting that they are the heirs of Ottoman citizens of Armenian origin, have filed various lawsuits in Californian courts. In February 2004, New York Life Insurance (NYLI) company have agreed to give 20 million dollars to the Armenians through a deal. Later on, as a result of the negotiations held with the French AXA insurance company, the French company has accepted to pay 17 million dollars, but from what could be understood later on, a very small amount of this money has been paid to the families of the policy owners. (The lawyers of the policy owners have engaged in a lawsuit among themselves due to disagreement and the payments they were to receive from both cases. According to the statements and news in the press, a great portion of the compensations have been paid as attorney fees.)
These two cases are the results the Diaspora Armenians obtained through compromise before the cases were concluded. However, the lawsuit filed in 2003 by Priest Vazken Movsesian against the German insurance company Munich Re has not been concluded in a similar manner. The matter in dispute, as in the cases of NYLI and AXA, is the insurance policies alleged not to have been paid. In reference to the definition of the Armenian genocide victim in section 354.4 of the California CCP, both lawsuits have been filed in the court of California with the allegation that they are victims of genocide and their insurance policies have not been paid. While AXA and NYLI have taken the path of compromise, the German Munich Re company has continued the case.
The decision reached by the court against Munich Re was appealed and the court of appeal ruled on August 2009 that section 354.4 of the California CCP, within the framework of “foreign policy doctrine”, violated the foreign policy preference of the US executive power. Accordingly, the executive branch had until now publicly opposed in the US House of Representatives the bills on the recognition of the “Armenian Genocide” becoming laws. In US Constitution, Federal Law is preempted under any state law conflicting with itself. By using the term “Armenian Genocide” of section 354.4, Judge Thompson has indicated that it conflicts with the US President’s open foreign policy preference. In fact, Thompson has put forth that the real purpose of the law in California is not to compensate for the insurance claims of a certain group of individuals but that the California legislative expressed its discontent towards the foreign policy preferences of the Federal government and that this has been made in contradiction with the Constitution.
Despite this very explicit legal situation, the decision being appealed upon the objections of the Armenians has been changed on 10 December 2010 in the panel formed by the same judges. This time with 2 votes against 1, it has been decided that section 354.4 is not contradictory to federal foreign policy preference, because no such federal policy exists and by putting forth that there is no federal policy that prohibits states from using the term “Armenian Genocide”, have reversed their previous decision. By sending an amicus curiae to the court, the Republic of Turkey has indicated that section 354.4 directly concerns Turkish-US relations and that the Turkish government has never consented to being accused of genocide in its past in any US forum. Thus, Munich Re has objected to this decision and has proposed a en banc hearing to take place consisting of all members of the court. This panel took place on December 14th 2011 and the attorneys of both sides have for the last time conveyed their views regarding applicability of section 354.4 in front of the en banc hearing.
The Decision of 23 February
In its decision of 23 February, the court has reviewed section 354.4 from the aspect of Foreign Policy Doctrine and has reached the following results:
1. The Constitution gives the federal government the exclusive authority to administer foreign affairs.
2. Under the foreign affairs doctrine, state laws that intrude on this exclusively federal power are preempted. So these laws are no longer valid. This could be determined in two different ways.
a. Conflict Preemption: a state law must yield when it conflicts with an express federal foreign policy
b. Field Preemption: a state law may be preempted if it intrudes on the field of foreign affairs without addressing a traditional state responsibility.
3 … Supreme Court recognized that the Constitution implicitly grants to the federal government a broad foreign affairs power. The existence of this general foreign affairs power implies that, even when the federal government has taken no action on a particular foreign policy issue, the state generally is not free to make its own foreign policy on that subject. Considering the tradition powers of states, Section 354.4 does not concern an area of traditional state responsibility and intrudes on the federal government’s foreign affairs power…
4 … section 354.4 applies only to a certain class of insurance policies and specifies a certain class of people. The purpose of the section is not to compensate the insurance policies, but it is clear that the real purpose of section 354.4 is to provide potential monetary relief and a friendly forum for those who suffered from certain foreign events. But this purpose remains outside the traditional state responsibility…
5 … Section 354.4 has “more than some incidental or indirect effect” on foreign affairs. The statute expresses a distinct political point of view on a specific matter of foreign policy. It imposes the politically charged label of “genocide” on the actions of the Ottoman Empire and expresses sympathy for “Armenian Genocide victims”… holding that, even in the absence of a conflicting federal policy, a state may violate the constitution by establishing its own foreign policy…
6. In conclusion, section 354.4 expresses a distinct point of view on a specific matter of foreign policy. Its effect on foreign affairs is not incidental; rather, section 354.4 is, at its heart, intended to send a political message on an issue of foreign affairs. The law imposes a concrete policy of redress for “Armenian Genocide victims,” subjecting foreign insurance companies to suit in California by overriding forum-selection provisions and greatly extending the statute of limitations for a narrowly defined class of claims. We remand the case to the district court with instructions to dismiss all claims revived by that statute.
This decision has caused the Movsesian case to be concluded in favor of Munich Re. We will evaluate the possible consequences of the claim for damages filed in Californian courts against the Republic of Turkey and its institutions in our next article as follows:
Section 354.4 of the Californian Code of Civil Procedure adopted in California in 2000 (the Poochigian Law taking its name from the member of parliament presenting the bill) and entailing the definition “Armenian Genocide” and “Armenian Genocide Victim” was repealed with a ruling last week in a file suit that began in 2003 by American citizens of Armenian origin against the German insurance company Munich Re on grounds that the costs of the insurance policies they had brought from this company during the Ottoman period was not paid to them. Therefore, the initiatives of the Armenians for the “genocide” allegations to be recognized in US courts suffered a serious blow. The silence of the Diaspora Armenians in reaction to the decision continues. It could be seen that besides a few criticisms, first the annulment of the controversial law that forbade the denial of “Armenian Genocide” in France by the Constitutional Council and now the repealing of the Poochigian Law with the Movsesian ruling has created disappointment in the Diaspora.
However, the Diaspora Armenians are not only openly declaring their claims for compensation in the US, but also in different parts of the worlds. Most recently, an international conference entitled “The Armenian Genocide: From Recognition to Preparation” held in Lebanon on 23-25 February and prepared by the Armenian Catholicosate of Cilicia was the most noteworthy event within this framework. The Western Armenians Conference convened in Sevres towards the end of 2011 had also declared the intention for the Armenians abroad to claim for returning or compensation of Armenian properties. Thus, despite the fact that the result in the Californian courts will obstruct for the time being the initiatives of the Armenians on insurance claims and other cases, one must not overlook that their initiatives before 2015 will continue increasingly.
US citizens of Armenian origin had filed a lawsuit in Californian courts against the Republic of Turkey and its two banks (Ziraat Bank and the Central Bank) with the claim that there was “unjust enrichment from liquidation of properties belonging to Armenians subjected to genocide in 1915 and conducting commercial activities with this unjust enrichment”. In two different cases, reparations of millions of dollars were claimed from Turkey and the two banks (i.e. Ziraat Bank and Central Bank of Turkey). While insurance cases are private legal cases concerned with claiming the insurance policies of their ancestors subjected to “genocide”, this time we see two cases attempting to make the jurisdictional immunity of states in the international sphere (and in US courts) a matter of legal process and drawing Turkey into a genocide discussion in US courts. (Among them, the Davoyan case is known as the Incirlik Case in the press.) Although this issue raises many problems, these two cases had until now began to major on two points:
1. Is discussing the allegation of unjust enrichment as a result of “genocide” which would restrict the Turkish Republic’s jurisdictional immunity towards US courts consistent with international law? Even with the purpose of identifying the commercial activity conducted through unjust enrichment, does a US court have the competence or authority to determine whether or not a foreign government committed genocide?
2. How could a US court discuss whether an activity of the Ottoman government taking place 100 years before created unjust enrichment? In order for the US court to have competence on this subject, the ancestors of the plaintiffs alleging victimhood must be US citizens. (the Atlman case) Were these Ottoman citizens of Armenian origin subjected to relocation deprived of Ottoman citizenship? Was relocation an act of “deportation”? The answers to the last two questions are quite clear: the Ottoman Armenians are Ottoman citizens during the relocation and the relocation has taken place within the Ottoman borders.
There are many more historical facts which make these claims for damages developing upon these two critical issues much more problematic: the consistency and application of the legislation concerning the emval-i metruke (abandoned properties, return of properties and real estates to those Armenians who had returned and claimed them, the ultimate resolution of these issues with the treaties of Lausanne and Kars signed with the Armenians, and upon the requests of the Armenians who have migrated to the US and as a result of lengthy negotiations Turkish Republic’s affirmative answer to accept the payment of 1.3 million dollars to the US government to be paid to the Armenians (as an intention of goodwill between the two states) etc.
Surely, the real purpose of this legal conflict which the Diaspora Armenians are pursing in US courts to receive compensation from Turkey is not to compensate for the properties confiscated. Just as in the cases of Movsesian and other insurance cases, the main target is for the “genocide” allegations to penetrate US legislation and the legal system and to make Turkey a party to this discussion before 2015 or to pressure her to recognize these allegations.
The Possible Affect of the Movsesian Case on Claims for Damages
We believe that the most noteworthy expression in the Movsesian case is the one on page 16 stating “politically charged label of ‘genocide”. The Californian court openly determined that the “Armenian genocide” label in the law is a political label. More importantly, based on such an expression has indicated that showing sympathy to the “Armenian genocide victim” goes beyond the area of jurisdiction of a state given by the Constitution.
In the Bakalian and Davoyan cases, the expression of “Armenian Genocide Victim” (and considered to be recognized) in the Poochigian Law is given as the basis for claims concerning the unjust enrichment of the Ottoman state and Turkish Republic (California Code of Civil Procedure 354.4). So, one of the main foundations in both cases is the law annulled with the Movsesian ruling. This way, since the court finds the genocide allegations as invalid, which were considered to have been fixed/recognized previously with this law, it also eliminates its competence in the establishment and punishment of genocide. Since Article 1605 (FSIA) which constitutes an exception to jurisdictional immunity of states do not give US courts the right or the duty to determine whether an act of a foreign state is just compatible with international law, it also makes the “Armenian genocide” allegation, which is the emerging point of the Bakalian and Davoyan cases, as invalid. Anyhow, before US courts determine that the law in California is not invalid, just as in the Movsesian case, it should have determined “genocide” and taken into consideration the international law and procedure. However, the courts have taken the legal strategies and games of Armenian jurists seriously and have actually fallen into a legal trap as the French did. We hope that the Bakalian and Davoyan cases will also take these findings in the Movsesian ruling seriously.
California Armenian Genocide Law Overturned
By Bob Egelko, February 24, 2012
SAN FRANCISCO -- A California law allowing heirs of victims of the Armenian genocide to sue in state courts for unpaid insurance benefits is invalid because it intrudes into sensitive foreign policy questions that are the exclusive domain of the federal government, a federal appeals court ruled Thursday.
In an 11-0 decision that tiptoed around the use of the word "genocide," the Ninth U.S. Circuit Court of Appeals in San Francisco said the law, passed in 2000, "establishes a particular foreign policy for California" that exceeds any state's authority.
The court ordered dismissal of a class-action suit filed in 2003 by several hundred Armenian Americans against a German insurance group and two subsidiaries. The ruling effectively kills all suits filed under the law, since a lawyer for the plaintiffs, Lee Crawford Boyd, said there's little chance that the Supreme Court would agree to review an appeal.
It was the latest in a series of federal rulings that have barred California and other states from allowing victims of decades-old foreign atrocities, like the Nazi Holocaust and the alleged use of slave labor by the Japanese military, to seek redress in their courts.
As many as 1.5 million Armenians were killed in the Ottoman Empire between 1915 and 1923. Most historians consider it a genocide, but the Turkish government protests use of the term and has urged U.S. administrations to prevent any endorsement by Congress.
President Obama, in annual speeches condemning the killings, has refrained from describing them as a genocide. The Obama administration took no position in the case.
The California law allows descendants of Armenians killed or deported during that period, or of anyone who escaped to avoid persecution, to sue insurers until 2016, long after the normal legal deadlines would have expired.
A three-judge appeals court panel upheld the law in 2010, saying it did not conflict with any explicit federal policy. But after the full appeals court granted a rehearing, the 11-judge panel Thursday said foreign affairs are an exclusive federal preserve, even if the government has no defined policy on the subject.
California's law was "intended to send a political message on an issue of foreign affairs by providing (monetary) relief and a friendly forum to a perceived class of foreign victims," Judge Susan Graber said in the ruling. She said the law "imposes the politically charged label of 'genocide' " - a term about which, she said in a footnote, the court expresses no opinion.
Boyd, the plaintiffs' lawyer, said the ruling was disappointing but sent a strong message, along with other cases, that U.S. courts will not permit such laws. In a dispute between private parties, with the Obama administration voicing no objection, she said, "I think the fears (of interfering with foreign policy) are overblown."
Neil Soltman, lawyer for German insurance company Munich Re, said the court properly recognized that "the interests of the United States as a whole are more important than the particular interests of any small group."
The ruling can be viewed below:
Click Here For The Direct Link: US Court Of Appeals For The Ninth Circuit Vazken Movsesian Harry Arzoumanian Garo Ayaltin Miran Khagerian Ara Khajerian
Click Here For The Full View: Comments
Bob Egelko is a San Francisco Chronicle staff writer. begelko at sfchronicle dot com
27-28 Feb 2012 Update
Letter To The Court By Sukru Aya
Direct Link For The Letter To The Court By Sukru Aya
Counter Comments By Sukru Aya
Click Here For The Direct Link: Counter Comments By Sukru Aya
Why California Armenian Genocide Law Overturned? By Saltzman & Evinch
Direct Link For The Document: Why California Armenian Genocide Law Overturned? By Saltzman & Evinch