REPARATIONS: THE NEW FRONTIER OF THE ARMENIAN CAUSE AND ITS CHALLENGES
Wednesday, April 24th, 2013
Philippe Kalfayan
BY PHILIPPE R. KALFAYAN
Lawsuits arising from Armenian-originated citizens of United States
against Insurance or Financial establishments, detaining or having
detained assets belonging to our Ottoman ancestors, paved the way
for a new frontier of the Armenian Cause. Three years ago, the AGRSG
(Armenian Genocide Reparation Study Group) took initiative for a
preliminary report on the reparations issue. It was a good starting
point, although the preliminary assessment of the report highlights
its shortcomings from a strictly legal standpoint to support a judicial
claim for reparation. In particular, on several technical legal points,
the report is partially legally flawed (i.e. on the applicability of
the 1920 Treaty of Sevres; a treaty never ratified).
In a recent editorial, Harut Sassounian commented that �Lawsuits
against Turkey must be filed with utmost care, preparation and
professionalism, since they impact the interests of the entire
Armenian nation, particularly on the eve of the 100th Anniversary
of the Armenian Genocide.� One can only agree with him, but I
want to elaborate a bit further on the strategic directions and
every stakeholder shall understand that international exchange
and cooperation and the establishment of a global strategy and
judiciary action committee are urgently required when lawsuits are
initiated against Turkey or its private or public institutions for
the reparations issues.
Let us start by a global assessment of the situation. Continuous
observation and thorough analysis of Turkish writings and declarations,
human contacts with Turkish personalities, close to Foreign Affairs
circles of Turkey, indicate that Turkey is ready for confronting
Armenia about history and genocide. They most probably elaborated
a tactical plan for thwarting 2015 “tsunami” which may consist in
recognizing a minima the suffering of Armenians and crimes committed
by the Young Turks during the Ottoman Empire period, and restitute
or restore symbolically some assets, mainly the religious ones. They
have started doing that.
However, due to two factors, which are the absence of serious long
term strategy and the Karabakh issue, Armenia remains very defensive
while Turkey is encouraged to pursue and reinforce its denial strategy
of the genocide, as it is witnessed presently in many countries. The
actions for the international recognition of Armenian genocide are
deadlocked since the signature of the protocols. Putting, as Serzh
Sarkissian did recently, the international recognition of genocide
at the top of the agenda of Foreign Affairs of Armenia, unless it is
inclusive of legal proceedings at international level, is a mistake,
because the Armenian genocide is recognized de facto world-wide.
Continuation of that process is a trap. Indeed the actions for
recognition of the crime of genocide and combating its denial are
losses of time, energy, and finances to Armenians and divert from
the key challenges and goals, while those very resources fall short
and time becomes of the essence.
The biggest, but not fatal, threat for the Armenian Cause is a
unilateral and official recognition by Turkey of a crime and their
unilateral offer of symbolic reparations, because it may jeopardize or
at least minimize the outcome of any future collective or individual
legal action before courts. The Federal Court decision of Los Angeles
on March 26, 2013 illustrates the impact of international politics
over judges, when relating to international crimes, even though the
plaintiffs are nationals.
It is therefore urgent to develop a strategic roadmap on the Armenian
side, focusing on the reparations. Reparations are not only a matter
of justice for all the descendants of victims, but they are the only
legally pertinent and viable diplomatic arm in the hands of Armenian
Nation. Secondly, the right to reparations is disconnected from the
legal qualification of genocide. The mass crime against Armenians
and its recognition by Turkey are already established. Third, the
legal actions for collective reparation claims are to be initiated
by a legal subject, which may not be the Armenian State since this
one does not have a personal or specific jus standi in order to claim
restitute or restore symbolically some assets, mainly the religious
ones. They have started doing that.
However, due to two factors, which are the absence of serious long
term strategy and the Karabakh issue, Armenia remains very defensive
while Turkey is encouraged to pursue and reinforce its denial strategy
of the genocide, as it is witnessed presently in many countries. The
actions for the international recognition of Armenian genocide are
deadlocked since the signature of the protocols. Putting, as Serzh
Sarkissian did recently, the international recognition of genocide
at the top of the agenda of Foreign Affairs of Armenia, unless it is
inclusive of legal proceedings at international level, is a mistake,
because the Armenian genocide is recognized de facto world-wide.
Continuation of that process is a trap. Indeed the actions for
recognition of the crime of genocide and combating its denial are
losses of time, energy, and finances to Armenians and divert from
the key challenges and goals, while those very resources fall short
and time becomes of the essence.
The biggest, but not fatal, threat for the Armenian Cause is a
unilateral and official recognition by Turkey of a crime and their
unilateral offer of symbolic reparations, because it may jeopardize or
at least minimize the outcome of any future collective or individual
legal action before courts. The Federal Court decision of Los Angeles
on March 26, 2013 illustrates the impact of international politics
over judges, when relating to international crimes, even though the
plaintiffs are nationals.
It is therefore urgent to develop a strategic roadmap on the Armenian
side, focusing on the reparations. Reparations are not only a matter
of justice for all the descendants of victims, but they are the only
legally pertinent and viable diplomatic arm in the hands of Armenian
Nation. Secondly, the right to reparations is disconnected from the
legal qualification of genocide. The mass crime against Armenians and
its recognition by Turkey are already established. Third, the legal
actions for collective reparation claims are to be initiated by a
legal subject, which may not be the Armenian State since this one
does not have a personal or specific jus standi in order to claim
compensation of the injury suffered by the victims. To some extent
this is fortunate, because Armenia’s and Turkey’s relationship is
hostage to the Karabakh issue and Azerbaijani lobbying. However,
advisory proceedings before the International Court of Justice for
the recognition of Turkey’s international responsibility in the crime
against Armenians and its obligation to repair could, in case of
satisfaction, have a positive effect for the overall settlement issue
and would constitute a solid basis for negotiated claims process. This
action can only be initiated by the Armenian State.
The land restitution claim is much more problematic, from a legal
and political perspective, because the only legal subject capable of
applying for is the Armenian State, on one hand, and it cannot do it
today because of the 2009 signed protocols, on the other hand.
In order to take the necessary steps concerning a possible judicial
settlement of the reparation question, an action has been engaged in
Europe and it resulted in a strictly legal analysis concerning (i)
the rights to reparation which the Republic of Armenia, the Armenian
people, but also individuals of Armenian origin could reasonably invoke
under the relevant international law rules and principles and (ii)
the ways they could efficiently be enforced. Additionally the study
includes proposals on a claims mechanism for the implementation of
Turkey’s international responsibility and its obligation of reparation.
There are clear directions about all the work to be done especially for
the success of an overall claims’ strategy, be it legal or historical
fact-finding. Grouping of plaintiffs and mass claims are necessary for
the sake of pan Armenian collective negotiation. It is suggested the
creation of a unique trust fund to manage compensation payments. At
last and not the lesser challenge, political and diplomatic actions
and lobbying must be performed all along the process.
The 100th anniversary of the Armenian genocide in 2015 provides an
opportune momentum and imposes a deadline, but Armenians seem to be
failing so far to become prepared; it may well be already too late.
However it is crucial to start the process, which ought to be very
long, before that term.
The current problems of Armenia and devastating domestic and foreign
politics don’t help but are not an obstacle and should not prevent
the Diaspora for engaging in this initiative.
Therefore, I launch an appeal to all qualified colleagues and relevant
political forces from Diaspora already involved in the Armenian cause
and reparations process (the ANC could be leading this process), to
whatever extent, to gather rapidly, create a liaison body, especially
between Europe and USA, in order to exchange legal expertise and
analysis on the reparations issue and establish a legal strategy
in order to avoid counterproductive and disastrous decisions from
national jurisdictions. Decisions before US domestic courts may impact
other legal actions undertaken in Europe or elsewhere and vice-versa
with dangerous precedents and consequences. Raising the reparations
issue should be the new frontier of the Armenian cause. It offers
huge prospects for activists and scholars, but also for diplomats,
since it opens a new battlefield in the diplomatic strategy. Turkey
will have to face directly its past and will be obliged to negotiate
with the reality they originated: the so much hated Diaspora.
*Philippe Kalfayan is a lawyer, former secretary general of FIDH
(international NGO defending Human Rights), expert in Human Rights
and Administration of Justice at the Council of Europe. He co-founded
and is executive director of AGIR (Armenian Genocide International
Reparation), an international action fund intended for financing any
study, research or expertise, of juridical, historical, sociological,
or political nature, necessary for the legal and political settlement
claims process of genocide reparations. It also aims at financing
the judiciary actions serving that objective. Philippe Kalfayan is
involved in the reform of the judiciary and especially the legal
profession in Armenia since 1998; he has been instrumental in the
reunification of advocates in a unique chamber in 2004, building the
bar independence and reinforcement of skills. An initial training
and a continuous professional training school has been established in
2012. He is currently special adviser and in charge of international
relations at the Chamber of Advocates of the Republic of Armenia.
http://asbarez.com/109619/reparations-the-new-frontier-of-the-armenian-cause-and-its-challenges/