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9th Circuit Court Ignored Genocide Convention In Genocide Ruling, Sa

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  • 9th Circuit Court Ignored Genocide Convention In Genocide Ruling, Sa

    9TH CIRCUIT COURT IGNORED GENOCIDE CONVENTION IN GENOCIDE RULING, SAYS EXPERT

    asbarez
    Wednesday, March 14th, 2012

    The 9th Circuit Court of Appeals

    >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.

    Stan Goldman 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.

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