BY PHILIPPE R. KALFAYAN
Lawsuits arising from Armenian-originated citizens of United States against Insurance or Financial establishments, detaining or having detained assets belonging to our Ottoman ancestors, paved the way for a new frontier of the Armenian Cause. Three years ago, the AGRSG (Armenian Genocide Reparation Study Group) took initiative for a preliminary report on the reparations issue. It was a good starting point, although the preliminary assessment of the report highlights its shortcomings from a strictly legal standpoint to support a judicial claim for reparation. In particular, on several technical legal points, the report is partially legally flawed (i.e. on the applicability of the 1920 Treaty of Sevres; a treaty never ratified).
In a recent editorial, Harut Sassounian commented that ìLawsuits against Turkey must be filed with utmost care, preparation and professionalism, since they impact the interests of the entire Armenian nation, particularly on the eve of the 100th Anniversary of the Armenian Genocide.î One can only agree with him, but I want to elaborate a bit further on the strategic directions and every stakeholder shall understand that international exchange and cooperation and the establishment of a global strategy and judiciary action committee are urgently required when lawsuits are initiated against Turkey or its private or public institutions for the reparations issues.
Let us start by a global assessment of the situation. Continuous observation and thorough analysis of Turkish writings and declarations, human contacts with Turkish personalities, close to Foreign Affairs circles of Turkey, indicate that Turkey is ready for confronting Armenia about history and genocide. They most probably elaborated a tactical plan for thwarting 2015 “tsunami” which may consist in recognizing a minima the suffering of Armenians and crimes committed by the Young Turks during the Ottoman Empire period, and restitute or restore symbolically some assets, mainly the religious ones. They have started doing that.
However, due to two factors, which are the absence of serious long term strategy and the Karabakh issue, Armenia remains very defensive while Turkey is encouraged to pursue and reinforce its denial strategy of the genocide, as it is witnessed presently in many countries. The actions for the international recognition of Armenian genocide are deadlocked since the signature of the protocols. Putting, as Serzh Sarkissian did recently, the international recognition of genocide at the top of the agenda of Foreign Affairs of Armenia, unless it is inclusive of legal proceedings at international level, is a mistake, because the Armenian genocide is recognized de facto world-wide. Continuation of that process is a trap. Indeed the actions for recognition of the crime of genocide and combating its denial are losses of time, energy, and finances to Armenians and divert from the key challenges and goals, while those very resources fall short and time becomes of the essence.
The biggest, but not fatal, threat for the Armenian Cause is a unilateral and official recognition by Turkey of a crime and their unilateral offer of symbolic reparations, because it may jeopardize or at least minimize the outcome of any future collective or individual legal action before courts. The Federal Court decision of Los Angeles on March 26, 2013 illustrates the impact of international politics over judges, when relating to international crimes, even though the plaintiffs are nationals.
It is therefore urgent to develop a strategic roadmap on the Armenian side, focusing on the reparations. Reparations are not only a matter of justice for all the descendants of victims, but they are the only legally pertinent and viable diplomatic arm in the hands of Armenian Nation. Secondly, the right to reparations is disconnected from the legal qualification of genocide. The mass crime against Armenians and its recognition by Turkey are already established. Third, the legal actions for collective reparation claims are to be initiated by a legal subject, which may not be the Armenian State since this one does not have a personal or specific jus standi in order to claim compensation of the injury suffered by the victims. To some extent this is fortunate, because Armenia’s and Turkey’s relationship is hostage to the Karabakh issue and Azerbaijani lobbying. However, advisory proceedings before the International Court of Justice for the recognition of Turkey’s international responsibility in the crime against Armenians and its obligation to repair could, in case of satisfaction, have a positive effect for the overall settlement issue and would constitute a solid basis for negotiated claims process. This action can only be initiated by the Armenian State.
The land restitution claim is much more problematic, from a legal and political perspective, because the only legal subject capable of applying for is the Armenian State, on one hand, and it cannot do it today because of the 2009 signed protocols, on the other hand.
In order to take the necessary steps concerning a possible judicial settlement of the reparation question, an action has been engaged in Europe and it resulted in a strictly legal analysis concerning (i) the rights to reparation which the Republic of Armenia, the Armenian people, but also individuals of Armenian origin could reasonably invoke under the relevant international law rules and principles and (ii) the ways they could efficiently be enforced. Additionally the study includes proposals on a claims mechanism for the implementation of Turkey’s international responsibility and its obligation of reparation.
There are clear directions about all the work to be done especially for the success of an overall claims’ strategy, be it legal or historical fact-finding. Grouping of plaintiffs and mass claims are necessary for the sake of pan Armenian collective negotiation. It is suggested the creation of a unique trust fund to manage compensation payments. At last and not the lesser challenge, political and diplomatic actions and lobbying must be performed all along the process.
The 100th anniversary of the Armenian genocide in 2015 provides an opportune momentum and imposes a deadline, but Armenians seem to be failing so far to become prepared; it may well be already too late. However it is crucial to start the process, which ought to be very long, before that term.
The current problems of Armenia and devastating domestic and foreign politics don’t help but are not an obstacle and should not prevent the Diaspora for engaging in this initiative.
Therefore, I launch an appeal to all qualified colleagues and relevant political forces from Diaspora already involved in the Armenian cause and reparations process (the ANC could be leading this process), to whatever extent, to gather rapidly, create a liaison body, especially between Europe and USA, in order to exchange legal expertise and analysis on the reparations issue and establish a legal strategy in order to avoid counterproductive and disastrous decisions from national jurisdictions. Decisions before US domestic courts may impact other legal actions undertaken in Europe or elsewhere and vice-versa with dangerous precedents and consequences. Raising the reparations issue should be the new frontier of the Armenian cause. It offers huge prospects for activists and scholars, but also for diplomats, since it opens a new battlefield in the diplomatic strategy. Turkey will have to face directly its past and will be obliged to negotiate with the reality they originated: the so much hated Diaspora.
*Philippe Kalfayan is a lawyer, former secretary general of FIDH (international NGO defending Human Rights), expert in Human Rights and Administration of Justice at the Council of Europe. He co-founded and is executive director of AGIR (Armenian Genocide International Reparation), an international action fund intended for financing any study, research or expertise, of juridical, historical, sociological, or political nature, necessary for the legal and political settlement claims process of genocide reparations. It also aims at financing the judiciary actions serving that objective. Philippe Kalfayan is involved in the reform of the judiciary and especially the legal profession in Armenia since 1998; he has been instrumental in the reunification of advocates in a unique chamber in 2004, building the bar independence and reinforcement of skills. An initial training and a continuous professional training school has been established in 2012. He is currently special adviser and in charge of international relations at the Chamber of Advocates of the Republic of Armenia.