9th Circuit Court Ignored Genocide Convention in Genocide Ruling, Says Expert

BY STAN GOLDMAN

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.

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.