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Did the Supreme Court Really Reject the `Armenian Thesis'?
http://massispost.com/archives/8871
Updated: June 20, 2013
By Edvin Minassian
(translated from the original article in Turkish Published by Agos
Weekly Newspaper on June 14,2013)
Pursuant to a decision published this week, the Supreme Court of the
United States rejected the appeal filed by Armenian plaintiffs of the
ruling by a lower court in favor of the German Insurance Company
Munich Re (Munchener Ruchvershieherungs-Gesellschaft
Aktiengesellschaft).
Newspaper headlines (in Turkey) reported this as `The United States
Supreme Court rejects the Armenian Thesis'. This is not an accurate
representation of the ruling. The question before the High Court was
not the accuracy of the Armenian Thesis (or the Cause/ Position); it
was not whether the Genocide did or did not happen. The real question
before the Court centered around whether or not a conflict existed
between the State of California and the federal government of the
United States of America that involved an alleged infringement by
California on foreign policy powers of the federal government.
Depending on the existence of such conflict of authority, the follow
up question the Court had to address was whether or not a California
Statute should be stricken down. That was the dispute before the
Supreme Court.
HISTORY OF THE LEGAL CASE:
To be able to understand this complex matter better one needs to
review the history of the legal proceedings. Approximately ten years
ago the Legislature of the State of California passed a law extending
the statute of limitations for filings against certain life insurance
carriers. Generally, and based upon legal tradition, laws that
involve regulations and obligations pertaining to insurance companies
have been the domain of individual and sovereign states. In other
words, insurance laws differ from each other in New York, Florida and
California. The legislation in question was passed based upon the
understanding of the legal and constitutional traditional powers
possessed by the State of California; and provided a ten year
extension of the statute of limitations for filing law suits against
life insurance companies, by the heirs of those individual citizens
of the Ottoman Empire, who owned life insurance policies, and lost
their lives, were exiled or escaped to save their lives, between 1915
and 1923.
The key area of contention of the statutory language is its reference
to the time period of 1915 through 1923, as the era commonly known
to be the `Armenian Genocide'. Nevertheless, despite the
misrepresentations in the Media, the deceased policy holder is not
mandated to be a victim of the Armenian Genocide or exclusively of
Armenian ancestry. In other words, the deceased person could have
passed away in his house in Kayseri or Sivas due to natural causes and
this insured (Ottoman) citizen could have been a Greek, or a Turk or
an Albanian. Due to the prevailing chaotic circumstances of the time
period, the present day heirs would have not been able to have access
to the insurance policies, and this law would enable them to pursue
their just claims for compensation against the German insurance
company. The statutory reference in essence is descriptive of the
time period as it is known to the California Legislature. The right
to compensation, however, does not rest on proof that the description
of the Era is accurate. Consequently, however, the descriptive
terminology rests at the core of the legal dispute.
Hence a legitimate private lawsuit against a private German Insurance
company, all of a sudden gets turned into an international dispute due
the terminology used in its enabling legislation. The fact that the
parties to both sides of the dispute are either private individuals or
private companies gets totally ignored. Moreover, the blaring
injustice of the windfall obtained by German insurers who sold
thousands of policies, collected premiums and never had to pay up when
the time came; got cast aside. One of the most disturbing aspects of
these cases is the evidence that was discovered in the course that the
French, British and German life insurance companies had a policy to
target Armenians in general as part of their sales efforts in the
Ottoman Empire. The marketing and sales training manuals taught
salespersons that compared to other ethnic and religious groups the
Armenians were more sensitive to providing for their families should
they pass away; while the others had shied away for such close
contemplations of their own mortality; and thus were less attractive
as potential customers of life insurance policies. These observations
do not necessarily establish the accuracy of such stereotyping, but do
explain the fact that Armenians disproportionately held more policies
than other groups.
The U.S. Supreme Court decision did uphold the decision by the 9th
Circuit of the U.S. Court of Appeals, reached after a long period
contemplation, various reversals and historic oral arguments,
determining that the California law interfered with the foreign policy
powers and authority of the federal government. Prior to the ruling
upholding the 9th Circuit decision, the Supreme Court asked the Obama
Administration their views as to the legal dispute. The Solicitor
General who represents the Executive Branch before the Supreme Court,
presented an extraordinarily long position statement which was
factually and legally questionable. The Solicitor General, also
supported by the State Department indicated that they were concerned
and apprehensive about the implications of this law on foreign policy;
expressing support for the decision of the Court of Appeals. One of
their most controversial contentions in that brief was that the issue
of compensation for Armenian Victims had been resolved via the
Lausanne II Treaty between the U.S. and the Republic of Turkey;
despite the fact that is an invalid treaty not even remembered by most
observers. Specifically, that was a Treaty that was never approved by
the Senate and therefore had no legal effect as an international
treaty. Even if it were a valid treaty, it had no impact on legal
disputes for compensation between private individuals and business
entities.
Another irony is the fact that this California Statute was found to be
unconstitutional since the terminology offended Turkey as alleged by
the defendants and the Obama Administration; while over 40 State
Legislatures and Governors officially have and continue to recognize
the Armenian Genocide; and President Obama in his April 24 statements,
while avoiding the usage of the word Genocide to the dismay of
Armenians, utilizes words and phrases which should have the same end
result of the perceived offensiveness.
In similar lawsuits that involved other life insurance companies, New
York Life and French carrier AXA had chosen to reach settlements with
the heirs. The German insurer Munich Re rejected that path and by
litigating this all the way up to the U.S. Supreme Court was able to
prevail due to a favorable interpretation of the Constitution of the
United States on an issue involving federalism, which gives primacy to
the federal executive on matters that are deemed to involve foreign
affairs. However, the real question one must ask and answer is whether
or not justice was rendered. When considered in the historical
perspective isn't the responsibility of Germany even greater? More
importantly, considering what took place in Anatolia in 1915, why
should the Republic of Turkey not pass a law similar to the one passed
in California?
The insurance companies conducted business within the borders of
Turkey, they sold insurance policies and the purchasers are certainly
not alive today. Naturally, the documentation that would have entitled
their beneficiaries to the proceeds disappeared in the chaotic
atmosphere, and only surfaced through valiant efforts of attorneys who
pursued these companies and compelled the release of the names of
policyholders. Whomever has a grandfather or grandmother who had
purchased life insurance policies from these companies within the
borders of the Ottoman Empire (the legal predecessor of the Republic);
and had been victimized during World War I, irrespective of their
cause of death, should as their legal heirs be entitled to their
contractual rights. Isn't unjust enrichment a reprehensible form of
injustice that offends our collective notion of justice?
From: Emil Lazarian | Ararat NewsPress
http://massispost.com/archives/8871
Updated: June 20, 2013
By Edvin Minassian
(translated from the original article in Turkish Published by Agos
Weekly Newspaper on June 14,2013)
Pursuant to a decision published this week, the Supreme Court of the
United States rejected the appeal filed by Armenian plaintiffs of the
ruling by a lower court in favor of the German Insurance Company
Munich Re (Munchener Ruchvershieherungs-Gesellschaft
Aktiengesellschaft).
Newspaper headlines (in Turkey) reported this as `The United States
Supreme Court rejects the Armenian Thesis'. This is not an accurate
representation of the ruling. The question before the High Court was
not the accuracy of the Armenian Thesis (or the Cause/ Position); it
was not whether the Genocide did or did not happen. The real question
before the Court centered around whether or not a conflict existed
between the State of California and the federal government of the
United States of America that involved an alleged infringement by
California on foreign policy powers of the federal government.
Depending on the existence of such conflict of authority, the follow
up question the Court had to address was whether or not a California
Statute should be stricken down. That was the dispute before the
Supreme Court.
HISTORY OF THE LEGAL CASE:
To be able to understand this complex matter better one needs to
review the history of the legal proceedings. Approximately ten years
ago the Legislature of the State of California passed a law extending
the statute of limitations for filings against certain life insurance
carriers. Generally, and based upon legal tradition, laws that
involve regulations and obligations pertaining to insurance companies
have been the domain of individual and sovereign states. In other
words, insurance laws differ from each other in New York, Florida and
California. The legislation in question was passed based upon the
understanding of the legal and constitutional traditional powers
possessed by the State of California; and provided a ten year
extension of the statute of limitations for filing law suits against
life insurance companies, by the heirs of those individual citizens
of the Ottoman Empire, who owned life insurance policies, and lost
their lives, were exiled or escaped to save their lives, between 1915
and 1923.
The key area of contention of the statutory language is its reference
to the time period of 1915 through 1923, as the era commonly known
to be the `Armenian Genocide'. Nevertheless, despite the
misrepresentations in the Media, the deceased policy holder is not
mandated to be a victim of the Armenian Genocide or exclusively of
Armenian ancestry. In other words, the deceased person could have
passed away in his house in Kayseri or Sivas due to natural causes and
this insured (Ottoman) citizen could have been a Greek, or a Turk or
an Albanian. Due to the prevailing chaotic circumstances of the time
period, the present day heirs would have not been able to have access
to the insurance policies, and this law would enable them to pursue
their just claims for compensation against the German insurance
company. The statutory reference in essence is descriptive of the
time period as it is known to the California Legislature. The right
to compensation, however, does not rest on proof that the description
of the Era is accurate. Consequently, however, the descriptive
terminology rests at the core of the legal dispute.
Hence a legitimate private lawsuit against a private German Insurance
company, all of a sudden gets turned into an international dispute due
the terminology used in its enabling legislation. The fact that the
parties to both sides of the dispute are either private individuals or
private companies gets totally ignored. Moreover, the blaring
injustice of the windfall obtained by German insurers who sold
thousands of policies, collected premiums and never had to pay up when
the time came; got cast aside. One of the most disturbing aspects of
these cases is the evidence that was discovered in the course that the
French, British and German life insurance companies had a policy to
target Armenians in general as part of their sales efforts in the
Ottoman Empire. The marketing and sales training manuals taught
salespersons that compared to other ethnic and religious groups the
Armenians were more sensitive to providing for their families should
they pass away; while the others had shied away for such close
contemplations of their own mortality; and thus were less attractive
as potential customers of life insurance policies. These observations
do not necessarily establish the accuracy of such stereotyping, but do
explain the fact that Armenians disproportionately held more policies
than other groups.
The U.S. Supreme Court decision did uphold the decision by the 9th
Circuit of the U.S. Court of Appeals, reached after a long period
contemplation, various reversals and historic oral arguments,
determining that the California law interfered with the foreign policy
powers and authority of the federal government. Prior to the ruling
upholding the 9th Circuit decision, the Supreme Court asked the Obama
Administration their views as to the legal dispute. The Solicitor
General who represents the Executive Branch before the Supreme Court,
presented an extraordinarily long position statement which was
factually and legally questionable. The Solicitor General, also
supported by the State Department indicated that they were concerned
and apprehensive about the implications of this law on foreign policy;
expressing support for the decision of the Court of Appeals. One of
their most controversial contentions in that brief was that the issue
of compensation for Armenian Victims had been resolved via the
Lausanne II Treaty between the U.S. and the Republic of Turkey;
despite the fact that is an invalid treaty not even remembered by most
observers. Specifically, that was a Treaty that was never approved by
the Senate and therefore had no legal effect as an international
treaty. Even if it were a valid treaty, it had no impact on legal
disputes for compensation between private individuals and business
entities.
Another irony is the fact that this California Statute was found to be
unconstitutional since the terminology offended Turkey as alleged by
the defendants and the Obama Administration; while over 40 State
Legislatures and Governors officially have and continue to recognize
the Armenian Genocide; and President Obama in his April 24 statements,
while avoiding the usage of the word Genocide to the dismay of
Armenians, utilizes words and phrases which should have the same end
result of the perceived offensiveness.
In similar lawsuits that involved other life insurance companies, New
York Life and French carrier AXA had chosen to reach settlements with
the heirs. The German insurer Munich Re rejected that path and by
litigating this all the way up to the U.S. Supreme Court was able to
prevail due to a favorable interpretation of the Constitution of the
United States on an issue involving federalism, which gives primacy to
the federal executive on matters that are deemed to involve foreign
affairs. However, the real question one must ask and answer is whether
or not justice was rendered. When considered in the historical
perspective isn't the responsibility of Germany even greater? More
importantly, considering what took place in Anatolia in 1915, why
should the Republic of Turkey not pass a law similar to the one passed
in California?
The insurance companies conducted business within the borders of
Turkey, they sold insurance policies and the purchasers are certainly
not alive today. Naturally, the documentation that would have entitled
their beneficiaries to the proceeds disappeared in the chaotic
atmosphere, and only surfaced through valiant efforts of attorneys who
pursued these companies and compelled the release of the names of
policyholders. Whomever has a grandfather or grandmother who had
purchased life insurance policies from these companies within the
borders of the Ottoman Empire (the legal predecessor of the Republic);
and had been victimized during World War I, irrespective of their
cause of death, should as their legal heirs be entitled to their
contractual rights. Isn't unjust enrichment a reprehensible form of
injustice that offends our collective notion of justice?
From: Emil Lazarian | Ararat NewsPress