We’ll Sue!

BY GAREN YEGPARIAN

Yes, it’s time for our community to get into the litigious act! And fortunately, we’ve started to catch on. Pursuing our goals requires being open to all avenues that will advance our struggle. The courts, especially in the U.S. are a very good forum that has been, to say the least, underutilized by our community.

Everyone knows about the seemingly large sums received by Jewish survivors of the Holocaust. This is separate from some of the big payouts to, or restoration of stolen property, to individuals (I can think of artwork as an example), that have also occurred. Yet there is scrutiny and criticism of these cases. The same must be true of Armenian forays into the courts in pursuit of justice, Genocide or otherwise based.

Of course the most current case is the one referred to as “Movsesian”. You probably recall the basics. A decade ago, the California legislature passed laws extending to 2010 the termination of the statute of limitations (how long after the incident you can sue) for Holocaust and Genocide claims. This was of course limited to entities over which the State of California had jurisdiction. The result was two lawsuits that bore fruit, one against NY Life and the other, AXA, a French company. Both had sold insurance to our predecessors, and never paid up when those people became victims of the Turkish mass murder. But when a German company, referred to briefly as “Victoria” in the court papers, was sued, things changed.

Victoria fought and in 2009, won. The federal court threw out the law claiming that it was unconstitutional because it interfered with the U.S. President’s ability to set foreign policy. This ridiculous contention was meticulously torn apart when the good guys appealed the ruling. Just a few weeks ago, the ruling was reversed. What’s important to learn from this is that a methodical, logical, thorough dismemberment of Victoria’s arguments and consequent judges’ ruling was necessary. The Movsesian attorneys pointed out the dozens and dozens of state level resolutions and proclamations that had never elicited a protest from the federal government. The federal government’s own actions, such as Pres. Ronald Reagan’s 1981 Armenian Genocide Proclamation and U.N. Genocide Convention related legal filings from the 1950s were pointed out. They pointed out the Krikorian case that wended its way through the courts in the 1980s and 1990s. The result of this case was the retraction by the U.S. Department of State of its infamous 1982 “note” denying the Genocide. That retraction obviously supported the position that the President/Executive Branch did not have a formal position of opposition to the Armenian Genocide. Of course there were numerous other, totally non-Armenian and non-Genocide based but relevant rulings and opinions cited. Some went back to the early days of the American Republic. Amicus Curiae (“friend of the court”) briefs were filed, at least by the Armenian Bar Association, ANCA, Zoryan Institute, International Association of Genocide Scholars, and even Cong. Adam Schiff.

Here, two more important lessons can be culled. Cooperation with non-Armenian entities is important, and something we have not done enough of. More of us must play the role of bridges spanning the specifically Armenian interests and the related general, broadly human, concerns. Also, we see how the years of efforts by organizations such as ANC helped provide part of the grounds for the desired reversal. This last point is VERY important.

The benefit accruing to individuals who are bringing these cases has been, and will continue to be, enabled by our collective, group, efforts. This creates at least a moral obligation, if not a direct, material, financial one to the group, in this case the Armenian nation and the organizations (governmental and non–governmental) standing up for its interests. At minimum, the suitors pursuing remedies must not do anything, concede anything, that would negatively impact the group’s interests and future. That is to say, hypothetically, if, to win monetary compensation from some company, those suing must sign a document saying they forever renounce any other claims rising from that era, they must be extremely cautious as to what it covers, ideally, avoiding giving such a release. For example, if there is no limitation to just the company being sued, (though even that could be a problem because future revelations might prove more wrongful behavior by the company in question), then these people, and perhaps others, might be hamstrung by the previous agreement.

Accusations of impropriety are easy to find in the Holocaust cases. I’m aware of at least one book that documents such concerns. It’s not as simple as claiming “the lawyers are making a killing off our martyrs” and that it shouldn’t be that way. We must be sure to minimize lawyerly money grubbing. Not only is it wrong for the actual people trying to receive remedies for Genocide period damages, but it also taints our cause by making it seem merely pecuniary and petty. We also have to be cautious not to seem money grubbing just by virtue of the fact that we’re pursuing monetary remedies. Already, some in our own community are posting comments to on-line articles that question the taking of “blood money” from the Turks. It’s a very small step space that separates the current lawsuits from that, admittedly erroneous, argument. But erroneous or not, “perception is reality” and that can effect our Cause.

Also, even the NY Life and AXA “victories” are not ideal. The payouts to the attorneys have been questioned. The fact that the amount received by the descendents of the original insurance policy purchasers was capped at what was a pittance is dubious. Finally, even implementation of the payouts has been poorly handled, at best. I know this from my family’s experience in the AXA case. We were denied. That’s astonishing enough. But then, when we’ve tried to at least understand how or why, we’ve been stonewalled, effectively not even getting any response from the administrator. If others have had similar experiences, given that people talk and these kinds of stories get blown out of proportion, our communities’ response to future suits might not be as enthusiastic, causing all around harm.

With all this to consider, it is obviously still a boon that with the recent reversal of the bad decision in the Movsesian case, it and any others may now proceed. But it’s not enough to proceed with all the caution advocated above. It is necessary to have a reverse consideration in mind as well. Since the law enabling these suits came about thanks to our community’s political engagement and their success has also been partially predicated on other aspects of our political activity, the attorneys involved must drive the courts to produce results that can then benefit our COLLECTIVE/GROUP efforts. We’ve all worked and helped individuals seeking redress. Now the individuals must work in such a way that their activity in the courts helps all of us.

Finally, we absolutely must not confuse the admittedly pleasing results accruing to individuals (and some institutions) from the insurance-company-type cases with the reparations that we seek as a nation from Turkey. Even if similar, individual-benefit lawsuits, are filed and won against Turkey, they still can not, must not, and shall not replace direct reparations from Turkey to our nation. Under no circumstances must the ability to receive collective reparations be undercut. There will be more commercial institutions being brought to the courts to disgorge their ill-gotten, Genocide-based gains. Soon, they will not just be European and American concerns, but the big fish, Turkish companies. We can only wish success to those pursuing such actions, but only with the provisos noted. Ultimately, as alluded above, we, as a nation and/or state- not individuals, will probably be taking Turkey itself, as represented by its government, to court in some appropriate venue(s). But, we have much more legal maturing to do and experience to gain before taking the Turkish government on in this way. But the Hrant Dink cases, brought in European court, which went against Turkey, though different in nature and basis from the sorts of suits discussed here, demonstrate that even that big, bad Genocide denier can be taken down with proper care and preparation.

The newest case on the docket is the one where the original, Armenian, owners of the land on which the Injirlik air base, leased by the U.S. from Turkey, and used in the Iraq and Afghanistan wars, are suing for damages. This is a very good example of a nexus netween the individual and collective aspects I’ve repeatedly mentioned. I can only hope the original families win big money (then turn around and donate a good piece of it to worthy community institutions). But this is a suit against Turkey, and involves the U.S. government too. It would be catastrophic if, for example, the Turkish government were to agree to some payment, but manage to finagle into the court ruling language that obstructs future Genocide related/based actions against it. Let’s see how this one plays out.

But the news isn’t all good on the legal front. It’s not only we who can, should, do, and will use the courts, but our opponents as well. Starting with the cases rising from assassinations of Turkish diplomats we’ve had to fight defensive actions. Those played out better in European courts than U.S. But that was some time ago, and many have forgotten. Much fresher is the experience of former Ohio Congressional candidate David Krikorian. Jean Schmidt, the Genocide-denying sitting Congresswoman against whom Krikorian ran, dragged the latter through hearings because he rightly accused her of taking Turkish blood money as campaign contributions. She was essentially playing with the semantics of the situation. We’ve also got a case wherein one of our activists has been, quite simply, screwed. A complete injustice has been done this person on totally non-Armenian-issue-based grounds, but arising from our community’s political involvements through an abuse, a manipulation, of the courts and their inherent, unavoidable, biases.

The bad news is not even limited to just Armenians and Armenian entities. There’s the case of the Turkish Coalition of America suing the University of Minnesota because one of that institution’s professors included the TCA’s website on a list of unreliable sources regarding the Genocide, from the perspective of scholarly research. Wow, imagine that! Who could ever deem a Turkish, denialist, website unreliable?

Then there’s the case of the Southern Poverty Law Center and the “retraction” it had to issue. This is a weird one. The SPLC called out a denier. Unfortunately, they made a small error, accusing the denier of being on the Turkish government’s payroll, which was not the case. The denier sued, won, and the SPLC had to issue an apology. But, the apology is worded in such a way that it gives the impression of calling the Genocide into question. Subsequently, SPLC has clarified that’s not their intent, but the clarification is not posted on their website, while the correction is. The SPLC is a very respectable organization, and it is very unfortunate that they’re in this situation. Also interesting is the fact that they’d told the denier’s lawyers they’d make the correction without going to court. This offer was refused. By needlessly dragging the whole thing through the courts, they Turkish interests clearly wanted to “make an example” of anyone daring to speak the truth or expose their hacks.

You can see that the courts are fraught with both opportunity and peril for our Cause. You can also see the growth in our involvement with them from the 1970s to now. The other positive outcome, a long time coming, is that we’re finally seeing some good come of the massive number of Armenians who have studied law and became attorneys over the last three decades. Back then, the time I too was in college, the grand notion was that we needed more lawyers (and certain other professionals, though they’re not germane to this topic) who would use their skills to pursue our cause. Instead, we’ve seen a tremendous number become ambulance chasers. Finally, the community-beneficial aspect of lawyers is peeking through.

All you attorneys, please take note. Pursue our collective legal goals with the same vigor you do your other cases, and let’s advance our liberation struggle.

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