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U.S. COURTS SHOULD NOT POLITICIZE THE ARMENIAN GENOCIDE
http://asbarez.com/109397/u-s-courts-should-not-politicize-the-armenian-genocide/
Monday, April 15th, 2013
Justice
SETO BOYADJIAN, ESQ.
On March 26, the U.S. District Court for the Central District of
California issued its ruling in the case of Garbis Davoyan, et al. vs.
Republic of Turkey, the Central Bank of the Republic of Turkey,
and T.C. Ziraat Bankasi (case no. CV 10-05636 DMG). Acting upon the
motion to dismiss filed on October 7, 2011 by defendants Central Bank
of the Republic of Turkey and T.C. Ziraat Bankasi, the court granted
the motion and dismissed the case.
Siding with the arguments of the defendants, the federal district court
held that it lacked subject matter jurisdiction to act and decide
upon the Davoyan case. The court reasoned that under the Foreign
Sovereign Immunities Act (FSIS), defendant Republic of Turkey as a
foreign state and the bank defendants as Turkey's instrumentalities
enjoy immunity unless the FSIA exceptions of immunity are applicable
to them. The court argued that to vest with jurisdiction under FSIA,
it must be found that the defendants fall within the FSIA "commercial
activity" exception or within the FSIA "expropriation" exception.
Through a bootstrap argument of the alleged facts, the court concluded
that neither of the FSIA exceptions is applicable to the defendants.
Therefore, the court ruled that it did not have jurisdiction to
proceed with the case and, accordingly, ordered its dismissal.
The court erred in its ruling, because:
First, the commercial activities carried out by the defendants in the
United States bear a "nexus" with the plaintiffs' grievances; there is
a "causal connection" between those activities and plaintiffs' claims;
and those activities have a "direct effect" in the United States.
Perhaps the attorneys for the plaintiffs failed to properly and fully
allege the facts in support of demonstrating the issues of the "nexus",
the "causal connection" and the "direct effect". However, there
were sufficient facts warranting the court to find that defendants'
commercial activities in the United States derive their resources
from the taking and usurpation of assets and property owned by
plaintiffs. Moreover, for decades the defendants' commercial activities
in the United States have targeted to stifle and deny the claims of
Armenian Americans who are similarly situated as the plaintiffs.
Second, the expropriation exception to defendants' immunity under
FSIA was applicable because, contrary to the court's assertion, the
plaintiffs or their predecessors were not citizens of the Ottoman
Empire or its successor Republic of Turkey. Armenians were "subjects"
of the Ottoman Empire. They had no rights such as those exclusively
enjoyed by ethnic Turks, who were considered the real and only citizens
of the Ottoman Empire. In fact, the Ottoman government categorized
Armenians and other Christians of the empire as "Raya" - that is,
members of the tax-paying lower class of the Ottoman Empire.
The expropriation exception was applied to Jewish claims against
Germany because they were considered as subjects under the Nazi
regime. The status of Armenians under Ottoman rule was not any
different from the status of Jews under Nazi rule. Accordingly,
the Ottoman taking of the property of its Armenian subjects was a
glaring act that contravened international law, thereby triggering
the FSIA expropriation exception.
Ironically, the court did find that the plaintiffs allege an
actionable violation of international law in that they "raise a
substantial and non-frivolous claim that the Ottoman government's
treatment of its own citizens [sic, "subjects" would be the accurate
status description] violated international law, thus falling within
the FSIA's expropriation exception." And, as the court states in its
ruling, it is settled that genocide violates international law and,
accordingly, the FSIA's international taking exception precludes
defendants from invoking the protection cloak of sovereign immunity.
Having taken the proper legal step in the right direction, the court
abruptly makes a u-turn on this exception as well, by maintaining that
it must assure itself that plaintiffs' claims would not require the
adjudication of a nonjusticiable political question. Thus, invoking
the "political question" doctrine, the court washes its hands by
relying on the Movsesian case (Movsesian vs. Victoria Versicherung AG)
and concluding that: (a) allowing the Davoyan case to proceed would
involve judicial interference in foreign relations; and (b) the court
cannot resolve such an inherently political question that the U.S.
Constitution reserves to the Executive and Legislative branches of
our government.
Just as the Ninth Circuit court ruling in the Movsesian case, the
district court ruling in the Davoyan case is erroneous. The issue of
Armenian Genocide is neither a political question nor preempted by
federal power to administer foreign affairs.
The issue of Armenian Genocide is a legal question settled by the
Genocide Convention which the United Nations adopted in 1948. It
was ratified by the U.S. Senate in 1988. This ratification makes
the Genocide Convention the law of the land. Hence, no U.S. court is
permitted to bypass or defeat the purpose of the provisions of the
law of the land. Armenian Genocide is an integral part of the Genocide
Convention and by that virtue it is part of the law of the land in this
country. In relegating the Armenian Genocide to the level of political
question, the courts in Movsesian and Davoyan cases are erring in that
they are failing to apply the law of the land of the United States.
Perhaps it would help to remind our judges and lawyers of the
legislative history and intent of the Genocide Convention that is
now our law of the land.
Raphael Lemkin, who is considered the father of the Genocide
Convention, coined the term 'genocide' in 1944. In substantiation of
this terminology, he invoked the Armenian case as a definitive example
of genocide in the 20th century. Lemkin described this crime as the
"systematic destruction of a whole national, racial or religious
groups. The sort of thing that Hitler did to the Jews and the Turks
did to the Armenians."
Following Lemkin's propositions, the United Nations enacted on December
11, 1946, its first resolution on Genocide, known as U.N.
General Assembly Resolution 95(1) that paved the way for the Genocide
Convention adopted in 1948. During the deliberations toward the
enactment of the Genocide Convention, the Ottoman massacres of
the Armenians and the Nazi massacres of the Jews were considered
as precedents.
Again in 1948, the U.N. War Crimes Commission invoked the Armenian
massacres as being "precisely . . . one of the types of acts which
the modern term 'crimes against humanity' is intended to cover as a
precedent for the Nuremberg tribunals."
In 1988, during the Senate ratification processes of the Genocide
Convention, time and time again the Senators made references to the
Ottoman massacres of Armenians as being Genocide.
Clearly, the U.N. Genocide Convention and the U.S. Senate deliberations
considered and treated the Armenian massacres as genocide. The law
cannot be as clear as that.
For over nine decades Turkey has unabashedly attempted to politicize
the Armenian Genocide in its relations with the U.S. government.
Recently, Turkey has started to politicize it in U.S. courts based
on the sham argument that any legal issue connected with the words
"Armenian Genocide" is a political question and preempted by federal
foreign affairs power.
U.S. courts cannot acquiesce to Turkish arguments lest they are
inclined to politicize the Armenian Genocide in U.S. jurisprudence.
U.S. courts should not politicize the Armenian Genocide, because it is
a settled legal question and an integral part of our law of the land.
Seto Boyadjian is an attorney and serves on the national board of ANCA.
From: Emil Lazarian | Ararat NewsPress
http://asbarez.com/109397/u-s-courts-should-not-politicize-the-armenian-genocide/
Monday, April 15th, 2013
Justice
SETO BOYADJIAN, ESQ.
On March 26, the U.S. District Court for the Central District of
California issued its ruling in the case of Garbis Davoyan, et al. vs.
Republic of Turkey, the Central Bank of the Republic of Turkey,
and T.C. Ziraat Bankasi (case no. CV 10-05636 DMG). Acting upon the
motion to dismiss filed on October 7, 2011 by defendants Central Bank
of the Republic of Turkey and T.C. Ziraat Bankasi, the court granted
the motion and dismissed the case.
Siding with the arguments of the defendants, the federal district court
held that it lacked subject matter jurisdiction to act and decide
upon the Davoyan case. The court reasoned that under the Foreign
Sovereign Immunities Act (FSIS), defendant Republic of Turkey as a
foreign state and the bank defendants as Turkey's instrumentalities
enjoy immunity unless the FSIA exceptions of immunity are applicable
to them. The court argued that to vest with jurisdiction under FSIA,
it must be found that the defendants fall within the FSIA "commercial
activity" exception or within the FSIA "expropriation" exception.
Through a bootstrap argument of the alleged facts, the court concluded
that neither of the FSIA exceptions is applicable to the defendants.
Therefore, the court ruled that it did not have jurisdiction to
proceed with the case and, accordingly, ordered its dismissal.
The court erred in its ruling, because:
First, the commercial activities carried out by the defendants in the
United States bear a "nexus" with the plaintiffs' grievances; there is
a "causal connection" between those activities and plaintiffs' claims;
and those activities have a "direct effect" in the United States.
Perhaps the attorneys for the plaintiffs failed to properly and fully
allege the facts in support of demonstrating the issues of the "nexus",
the "causal connection" and the "direct effect". However, there
were sufficient facts warranting the court to find that defendants'
commercial activities in the United States derive their resources
from the taking and usurpation of assets and property owned by
plaintiffs. Moreover, for decades the defendants' commercial activities
in the United States have targeted to stifle and deny the claims of
Armenian Americans who are similarly situated as the plaintiffs.
Second, the expropriation exception to defendants' immunity under
FSIA was applicable because, contrary to the court's assertion, the
plaintiffs or their predecessors were not citizens of the Ottoman
Empire or its successor Republic of Turkey. Armenians were "subjects"
of the Ottoman Empire. They had no rights such as those exclusively
enjoyed by ethnic Turks, who were considered the real and only citizens
of the Ottoman Empire. In fact, the Ottoman government categorized
Armenians and other Christians of the empire as "Raya" - that is,
members of the tax-paying lower class of the Ottoman Empire.
The expropriation exception was applied to Jewish claims against
Germany because they were considered as subjects under the Nazi
regime. The status of Armenians under Ottoman rule was not any
different from the status of Jews under Nazi rule. Accordingly,
the Ottoman taking of the property of its Armenian subjects was a
glaring act that contravened international law, thereby triggering
the FSIA expropriation exception.
Ironically, the court did find that the plaintiffs allege an
actionable violation of international law in that they "raise a
substantial and non-frivolous claim that the Ottoman government's
treatment of its own citizens [sic, "subjects" would be the accurate
status description] violated international law, thus falling within
the FSIA's expropriation exception." And, as the court states in its
ruling, it is settled that genocide violates international law and,
accordingly, the FSIA's international taking exception precludes
defendants from invoking the protection cloak of sovereign immunity.
Having taken the proper legal step in the right direction, the court
abruptly makes a u-turn on this exception as well, by maintaining that
it must assure itself that plaintiffs' claims would not require the
adjudication of a nonjusticiable political question. Thus, invoking
the "political question" doctrine, the court washes its hands by
relying on the Movsesian case (Movsesian vs. Victoria Versicherung AG)
and concluding that: (a) allowing the Davoyan case to proceed would
involve judicial interference in foreign relations; and (b) the court
cannot resolve such an inherently political question that the U.S.
Constitution reserves to the Executive and Legislative branches of
our government.
Just as the Ninth Circuit court ruling in the Movsesian case, the
district court ruling in the Davoyan case is erroneous. The issue of
Armenian Genocide is neither a political question nor preempted by
federal power to administer foreign affairs.
The issue of Armenian Genocide is a legal question settled by the
Genocide Convention which the United Nations adopted in 1948. It
was ratified by the U.S. Senate in 1988. This ratification makes
the Genocide Convention the law of the land. Hence, no U.S. court is
permitted to bypass or defeat the purpose of the provisions of the
law of the land. Armenian Genocide is an integral part of the Genocide
Convention and by that virtue it is part of the law of the land in this
country. In relegating the Armenian Genocide to the level of political
question, the courts in Movsesian and Davoyan cases are erring in that
they are failing to apply the law of the land of the United States.
Perhaps it would help to remind our judges and lawyers of the
legislative history and intent of the Genocide Convention that is
now our law of the land.
Raphael Lemkin, who is considered the father of the Genocide
Convention, coined the term 'genocide' in 1944. In substantiation of
this terminology, he invoked the Armenian case as a definitive example
of genocide in the 20th century. Lemkin described this crime as the
"systematic destruction of a whole national, racial or religious
groups. The sort of thing that Hitler did to the Jews and the Turks
did to the Armenians."
Following Lemkin's propositions, the United Nations enacted on December
11, 1946, its first resolution on Genocide, known as U.N.
General Assembly Resolution 95(1) that paved the way for the Genocide
Convention adopted in 1948. During the deliberations toward the
enactment of the Genocide Convention, the Ottoman massacres of
the Armenians and the Nazi massacres of the Jews were considered
as precedents.
Again in 1948, the U.N. War Crimes Commission invoked the Armenian
massacres as being "precisely . . . one of the types of acts which
the modern term 'crimes against humanity' is intended to cover as a
precedent for the Nuremberg tribunals."
In 1988, during the Senate ratification processes of the Genocide
Convention, time and time again the Senators made references to the
Ottoman massacres of Armenians as being Genocide.
Clearly, the U.N. Genocide Convention and the U.S. Senate deliberations
considered and treated the Armenian massacres as genocide. The law
cannot be as clear as that.
For over nine decades Turkey has unabashedly attempted to politicize
the Armenian Genocide in its relations with the U.S. government.
Recently, Turkey has started to politicize it in U.S. courts based
on the sham argument that any legal issue connected with the words
"Armenian Genocide" is a political question and preempted by federal
foreign affairs power.
U.S. courts cannot acquiesce to Turkish arguments lest they are
inclined to politicize the Armenian Genocide in U.S. jurisprudence.
U.S. courts should not politicize the Armenian Genocide, because it is
a settled legal question and an integral part of our law of the land.
Seto Boyadjian is an attorney and serves on the national board of ANCA.
From: Emil Lazarian | Ararat NewsPress