BY LILLY TOROSYAN
From The Armenian Weekly
The upcoming centenary of the Armenian Genocide represents an important milestone in the international movement for a truthful, just, and comprehensive resolution of Turkey’s crime against the Armenian nation.
A just resolution of the Armenian Genocide would include, first and foremost, the realization of the national claims of Armenia and the Armenian people to fair restitution and full reparations, as well as the return of church and community assets, and, of course, unhindered redress for the individual rights of genocide-era victims to their properties and assets.
One particularly high-profile individual rights case involves the efforts of genocide-era beneficiaries to secure unpaid insurance payments for the death of their loved ones. This case has its roots in a law passed by the California legislature and has reached all the way to the U.S. Supreme Court. On June 10, the Supreme Court decided it would not review the Ninth Circuit Court’s ruling that brought down the California state law extending the statute of limitations on insurance claims cases of the genocide era.
In an interview with the Armenian Weekly, Armenian National Committee of America (ANCA) Governmental Affairs Director Kate Nahapetian discusses the background of the case, and the implications of this Supreme Court decision.
The Framework of the legislation
In 2000, the Legislature of the State of California passed a law that extended the time period for filings against life insurance companies for claims that were never paid out. Normally, one has two years to file these claims, but because of the wartime dislocation and chaos associated with this circumstance, the state prolonged the statute of limitations for any Armenian Genocide-era victim. Nahapetian explains that, despite common misunderstandings, descendants of non-Armenians and non-genocide victims who are owed their insurance payments can also file this claim, so long as they were citizens of the Ottoman Empire in the years of 1915-1923.
The case began in the California Courts with pro-bono attorneys Vartkes Yeghiayan, Brian Kabatak, and Mark Geragos, who brought claims against several insurance companies, and were successful in several rulings, leading to settlements between companies such as New York Life and French carrier AXA. German insurer Munich Re (Münchener Rückversicherungs-Gesellschaft), however, litigated the claim. The Ninth Circuit of the U.S. Court of Appeals filed three separate and conflicting opinions, the most recent being in February 2012, which invalidated the California statute of limitations for insurance claims during the genocide period, based on an unprecedented expansion of the rarely invoked doctrine of foreign affairs field preemption. This principle states that the State of California improperly interfered with foreign policy powers and the authority of the federal government.
After this ruling, plaintiffs appealed to the Supreme Court to reverse the decision of the Ninth Circuit Courts. Plaintiffs’ lead attorney Igor Timofeyev, Esq. of Paul Hastings, LLP, filed the petition and a series of amicus briefs in support of the request, calling it a “revolutionary proposition [by the U.S. government] that states lack all authority to enact legislation concerning their citizens’ private claims if they originate in events that occurred abroad.” Attorneys Mary-Christine Sungaila and Seepan Parseghian of the Snell and Wilmer firm, as well as the Armenian Bar Association also filed amicus briefs, and were represented pro-bono by Bingham McCutchen, LLP, led by partner David Balabanian, a world-renowned lawyer. Other advocates of the plaintiffs include attorney David Salmons, chair of Appellate Practice Group; and Marco Simons, legal director for EarthRights International.
The Supreme Court’s ruling two weeks ago upheld the decision by the Ninth Circuit Court of Appeals. Prior to this ruling, the Court asked the Obama Administration for its views on the legal dispute. The solicitor general—the Executive Branch’s representative before the Supreme Court—presented a long statement that was widely seen as making selective use of relevant law and the U.S. historical record. He, along with the State Department, indicated that they were concerned about the implications of the law on foreign policy. They argued that the issue of compensation for Armenian Genocide victims had been resolved in the period between 1923 and 1937 through the Treaty of Lausanne, which was never approved by the Senate and therefore had no legal effect as an international treaty. Even if it were deemed valid, the treaty made no mention of how to go about settling disputes between private individuals and business entities.
The real issue: federalism
Nahapetian notes that, at its core, this case does not address the fact of the Armenian Genocide, or whether Armenians and other genocide victims have claims against Turkey; rather, it was considered primarily on the grounds of federalism, and the question of giving preeminence to the federal executive on matters that involve foreign affairs, at the expense of state sovereignty.
There currently is another case in California that deals with claims against Turkey for properties that were stolen during the genocide. The Foreign Sovereign Immunity Act provides certain immunity to foreign governments from lawsuits in the United States. Notably, the District Court—the first level in the state court system—found that Turkey was not immune from these lawsuits because of the human rights violations of its government during the genocide period.
Nahapetian argues that just because the Supreme Court will not hear the insurance law case, it does not necessarily reflect whether they believe the decision was correct. “In order for [the Supreme Court] to hear the case, its primary concern is to manage conflicts between the other circuit courts around the country. In this case, because there are not many Armenian Genocide-related cases all over the country, there wasn’t a clear conflict,” she explains.
When the California legislation was introduced in 2000, similar laws dealing with the Holocaust were also passed. Many of these different statutes were struck down and eventually went up to the Supreme Court, which also decided against these laws. However, the plaintiffs’ argument was not based on the broad doctrine of field prevention that the Armenian case advocates. Instead, they addressed the policy of conflict preemption, where the federal government devises a plan that resolves the issue, thereby preventing states from interfering with that process. In this instance, the mechanism the federal government created resolved Holocaust insurance claims by negotiating with foreign Swiss and German insurance carriers, which led to the Supreme Court’s ruling that states could not create other avenues to resolve the same claims for which the federal government has created a specific process.
“In the Armenian case, they could not practice the policy of conflict preemption because the federal government has not created a mechanism to resolve these claims, so they remain outstanding,” says Nahapetian.
Timofeyev echoes a similar view regarding the outcome of the Armenian Genocide-era insurance law case, but notes, confidently, that “the proper scope of the foreign affairs preemption doctrine is an important issue that the Court will end up examining in the future.” The Supreme Court reviews less than 1 percent of the cases that are brought to its attention every year, so both Timofeyev and Nahapetian maintain that there is hope to continue with this process until justice is achieved for these Armenian Genocide-era victims.