9TH CIRCUIT COURT IGNORED GENOCIDE CONVENTION IN GENOCIDE RULING, SAYS EXPERT
asbarez
Wednesday, March 14th, 2012
The 9th Circuit Court of Appeals
>From The Jurist
The US Court of Appeals for the Ninth Circuit, sitting en banc,
in the case of Movsesian v. Victoria Versicherung AG seems not
to have considered the significance of the UN Convention on the
Prevention and Punishment of the Crime of Genocide when it recently
declared unconstitutional a California statute that had authorized
the filing of state lawsuits over unpaid insurance claims brought by
the descendants of victims of the 1915-1921 massacres of Armenians
by the Ottoman Empire. The law had specifically designated that the
claims could be brought for policies that had been issued to “Armenian
genocide victims,” so long as the defendant insurer also happens to
be doing business in California. The law also eliminated any statute
of limitation barriers to such claims. The en banc court held that
this California statute intruded on territory reserved to the federal
government’s exclusive power to conduct and regulate foreign affairs.
Stan Goldman The court concluded that by labeling the massacres
as having been “genocide” and providing a legal remedy for it,
the State of California had entered a politically charged area that
amounted to establishing a particular foreign policy for the state. In
authorizing California state courts as a forum for such lawsuits,
a political message was being sent that could have a direct impact
upon foreign relations and might adversely affect the power of the
federal government to deal with these problems. The court’s opinion
acknowledged that the concerns of the Turkish government played a
part in the decision.
Was the court correct; or did the Ninth Circuit fail to consider the
consequence of the US being a signatory to the Genocide Convention?
The US having signed the convention presents significant issues with
respect to genocide in general and the genocide of the Armenians
in particular.
First, with respect to the general concept of genocide it must be
remembered that the international convention the US has joined not
only obligates all signatories to intervene when acts of genocide are
taking place, it also gives them the right of prosecution regardless of
where the acts had occurred. By federal law this right of prosecution
may be pursued in the US by either a federal or state court. Thus,
so long as the state has jurisdiction over the individual defendants,
federal law has ceded to the states a right and power to bring criminal
proceedings against any perpetrator of genocide committed anywhere
and at any time in the past.
If the early twentieth century massacre of the Armenians by the Turks
falls within the international convention’s legal definition of having
been “genocide,” then if any Turkish perpetrators were still alive
today, California would have the federally granted legal authority to
prosecute them irrespective of the Turkish government’s objections. In
other words, assuming we are in fact dealing with genocide, the Ninth
Circuit decision has created the anomaly that the State of California
may criminally prosecute those guilty of past genocides but may not
permit civil remedies against them. How could a lawsuit against an
insurance carrier (that may not be a Turkish company) doing business
in California, be said to have more of a direct impact upon foreign
relations so as to potentially adversely affect the power of the
federal government than would a criminal prosecution of a Turkish
soldier in a California state court for genocidal crimes?
We are led to the preliminary question of whether there was in fact
“genocide” perpetrated by the Ottoman Empire (the predecessor state to
present day Turkey) against the Armenians. To understand how obvious
and clear it is that the massacre of the Armenians falls within the
international definition of genocide, all we need do is to look at
the history of the Genocide Convention itself.
That history actually began in 1944 when Raphael Lemkin, a Polish
Jewish Holocaust survivor and professor of law, sought to connect
what he likely believed to be the greatest crimes of the twentieth
century: the destruction of European Jewry and the 1915-1921 Turkish
massacre of Armenia. He created the word “genocide” to describe and
connect these two all-but-unfathomable tragedies in his seminal work,
Axis Rule in Occupied Europe. It combined the Greek word “genos”
for family or tribe and the Latin word “cide” for killing. His
writings soon became a resource for the prosecutions at the Nuremberg
Trials. In 1948, thanks to his relentless efforts, the UN General
Assembly approved the first step required in order to add genocide
to the list of international crimes. Lemkin then spent the next three
years traveling from country to country lobbying for ratification of
the Genocide Convention, which first took effect in 1951.
Today, attorneys involved in the prosecution and defense of those
charged with genocidal crimes comb the papers of Raphael Lemkin in
search of legislative intent in hope of supporting whatever legal
position they may be taking. So complete was his authorship of this
rule that to this day commentators as diverse as Samantha Powers,
senior director for multilateral affairs at the National Security
Council in the Obama administration, and international correspondent
Christiane Amanpour refer to the genocide treaty simply as “Lemkin’s
Law.” When the US adopted the convention as the law of the land,
it also adopted a legislative history that includes the definition
and origin of “genocide.”
Though it is remotely possible to engage in a futile intellectual
exercise as to whether certain other attempts at man-made extinction
(such as the mass murders in Bosnia, Rwanda or Darfur) legally qualify
as genocides, there can be no such debate under international treaty
for the massacres of the Armenians or with respect to the Holocaust
of the Jews. To claim that neither are legally genocide would be like
arguing that slavery is not governed by the Thirteenth Amendment. You
cannot eliminate from the definition of a term the very thing the
word was created to describe.
Thus, the actual genocide treaty to which the US is a party was
authored by the man who created the word “genocide” specifically to
refer to the massacre of the Armenians at the hands of the Ottoman
Empire and the slaughter of the Jews at the hands of the Nazis and
their allies. If a perpetrator of those massacres were still alive
and present in California they could be criminally prosecuted in
California state courts. What then of potential civil consequences
arising out of such legally acknowledged genocide?
Consider civil actions involving Jewish victims of the Holocaust. Let
us assume that the Art Loss Registry discovers that a large and
influential Austrian Corporation has in one of its American offices a
valuable painting looted by the Nazis from the home of Sigmund Freud
as the elderly Jewish psychiatrist fled his Vienna in 1938. Freud’s
American-born legal heirs file a civil claim in a US state court in
an effort to retrieve ownership of the stolen art work. The Austrian
government, however, maintains that it would be an embarrassment
to one of its country’s major companies and thus could affect that
foreign nation’s relations with the US if the lawsuit were allowed
to proceed. Are we now to simply conclude that Austria’s objection
to a suit against one of its nation’s private corporations thereby
disables US courts from attempting to retrieve property in spite of
all American laws to the contrary?
Though it must be admitted that more recent administrations have been
hesitant to support symbolic reiterations designating the atrocities
against the Armenians as genocide, this does not change the fact that
the recognition of genocide of the Armenians is as an intrinsic part
of our having agreed to the Genocide Convention as is the recognition
of the German Holocaust of the Jews. Federal law already authorizes
the prosecution of perpetrators, including foreign nationals, of
genocidal crimes. This would be true even if they were Ottoman soldiers
or officials still alive today and captured within the territory of
California. How then can Turkish annoyance and objection be grounds
to invalidate a civil remedy against private companies in order to
obtain some minimal form of restitution for as yet uncompensated losses
arising out of this genocide? Yet, according to the Ninth Circuit,
no civil remedy can exist.
Much has changed in the near century since the massacres of the
Armenians. As it is now Istanbul and not Constantinople, so too the
Ottoman Empire morphed an age ago into the modern Republic of Turkey.
History, however, is immutable. Though the actual perpetrators of those
early twentieth century crimes against humanity may no longer be within
any signatory to the Genocide Conventions’ criminal jurisdiction, civil
claims still remain unsettled. Is it the role of US federal courts to
add unnecessary road blocks in the path of the victim’s efforts to
achieve a small modicum of long overdue restitution? This could not
have been the intent of the US when it signed the Genocide Convention.
Stan Goldman is a Professor of Law at Loyola Law School, Los
Angeles, where he is Director of the Center for the Study of Law &
Genocide. He filed an amicus brief in the Movsesian case on behalf of
the plaintiffs, and he appeared as second chair at an Ninth Circuit
panel that reviewed the case.