U.S. Courts Should Not Politicize The Armenian Genocide

SETO BOYADJIAN, ESQ.

On March 26, the U.S. District Court for the Central District of California issued its ruling in the case of Garbis Davoyan, et al. vs. Republic of Turkey, the Central Bank of the Republic of Turkey, and T.C. Ziraat Bankasi (case no. CV 10-05636 DMG). Acting upon the motion to dismiss filed on October 7, 2011 by defendants Central Bank of the Republic of Turkey and T.C. Ziraat Bankasi, the court granted the motion and dismissed the case.

Siding with the arguments of the defendants, the federal district court held that it lacked subject matter jurisdiction to act and decide upon the Davoyan case. The court reasoned that under the Foreign Sovereign Immunities Act (FSIS), defendant Republic of Turkey as a foreign state and the bank defendants as Turkey’s instrumentalities enjoy immunity unless the FSIA exceptions of immunity are applicable to them. The court argued that to vest with jurisdiction under FSIA, it must be found that the defendants fall within the FSIA “commercial activity” exception or within the FSIA “expropriation” exception.

Through a bootstrap argument of the alleged facts, the court concluded that neither of the FSIA exceptions is applicable to the defendants. Therefore, the court ruled that it did not have jurisdiction to proceed with the case and, accordingly, ordered its dismissal.

The court erred in its ruling, because:

First, the commercial activities carried out by the defendants in the United States bear a ”nexus” with the plaintiffs’ grievances; there is a “causal connection” between those activities and plaintiffs’ claims; and those activities have a “direct effect” in the United States. Perhaps the attorneys for the plaintiffs failed to properly and fully allege the facts in support of demonstrating the issues of the “nexus”, the “causal connection” and the “direct effect”. However, there were sufficient facts warranting the court to find that defendants’ commercial activities in the United States derive their resources from the taking and usurpation of assets and property owned by plaintiffs. Moreover, for decades the defendants’ commercial activities in the United States have targeted to stifle and deny the claims of Armenian Americans who are similarly situated as the plaintiffs.

Second, the expropriation exception to defendants’ immunity under FSIA was applicable because, contrary to the court’s assertion, the plaintiffs or their predecessors were not citizens of the Ottoman Empire or its successor Republic of Turkey. Armenians were “subjects” of the Ottoman Empire. They had no rights such as those exclusively enjoyed by ethnic Turks, who were considered the real and only citizens of the Ottoman Empire. In fact, the Ottoman government categorized Armenians and other Christians of the empire as “Raya” – that is, members of the tax-paying lower class of the Ottoman Empire.

The expropriation exception was applied to Jewish claims against Germany because they were considered as subjects under the Nazi regime. The status of Armenians under Ottoman rule was not any different from the status of Jews under Nazi rule. Accordingly, the Ottoman taking of the property of its Armenian subjects was a glaring act that contravened international law, thereby triggering the FSIA expropriation exception.

Ironically, the court did find that the plaintiffs allege an actionable violation of international law in that they “raise a substantial and non-frivolous claim that the Ottoman government’s treatment of its own citizens [sic, “subjects” would be the accurate status description] violated international law, thus falling within the FSIA’s expropriation exception.” And, as the court states in its ruling, it is settled that genocide violates international law and, accordingly, the FSIA’s international taking exception precludes defendants from invoking the protection cloak of sovereign immunity.

Having taken the proper legal step in the right direction, the court abruptly makes a u-turn on this exception as well, by maintaining that it must assure itself that plaintiffs’ claims would not require the adjudication of a nonjusticiable political question. Thus, invoking the “political question” doctrine, the court washes its hands by relying on the Movsesian case (Movsesian vs. Victoria Versicherung AG) and concluding that: (a) allowing the Davoyan case to proceed would involve judicial interference in foreign relations; and (b) the court cannot resolve such an inherently political question that the U.S. Constitution reserves to the Executive and Legislative branches of our government.

Just as the Ninth Circuit court ruling in the Movsesian case, the district court ruling in the Davoyan case is erroneous. The issue of Armenian Genocide is neither a political question nor preempted by federal power to administer foreign affairs.

The issue of Armenian Genocide is a legal question settled by the Genocide Convention which the United Nations adopted in 1948. It was ratified by the U.S. Senate in 1988. This ratification makes the Genocide Convention the law of the land. Hence, no U.S. court is permitted to bypass or defeat the purpose of the provisions of the law of the land. Armenian Genocide is an integral part of the Genocide Convention and by that virtue it is part of the law of the land in this country. In relegating the Armenian Genocide to the level of political question, the courts in Movsesian and Davoyan cases are erring in that they are failing to apply the law of the land of the United States.

Perhaps it would help to remind our judges and lawyers of the legislative history and intent of the Genocide Convention that is now our law of the land.

Raphael Lemkin, who is considered the father of the Genocide Convention, coined the term ‘genocide’ in 1944. In substantiation of this terminology, he invoked the Armenian case as a definitive example of genocide in the 20th century. Lemkin described this crime as the “systematic destruction of a whole national, racial or religious groups. The sort of thing that Hitler did to the Jews and the Turks did to the Armenians.”

Following Lemkin’s propositions, the United Nations enacted on December 11, 1946, its first resolution on Genocide, known as U.N. General Assembly Resolution 95(1) that paved the way for the Genocide Convention adopted in 1948. During the deliberations toward the enactment of the Genocide Convention, the Ottoman massacres of the Armenians and the Nazi massacres of the Jews were considered as precedents.

Again in 1948, the U.N. War Crimes Commission invoked the Armenian massacres as being “precisely . . . one of the types of acts which the modern term ‘crimes against humanity’ is intended to cover as a precedent for the Nuremberg tribunals.”

In 1988, during the Senate ratification processes of the Genocide Convention, time and time again the Senators made references to the Ottoman massacres of Armenians as being Genocide.

Clearly, the U.N. Genocide Convention and the U.S. Senate deliberations considered and treated the Armenian massacres as genocide. The law cannot be as clear as that.

For over nine decades Turkey has unabashedly attempted to politicize the Armenian Genocide in its relations with the U.S. government. Recently, Turkey has started to politicize it in U.S. courts based on the sham argument that any legal issue connected with the words “Armenian Genocide” is a political question and preempted by federal foreign affairs power.

U.S. courts cannot acquiesce to Turkish arguments lest they are inclined to politicize the Armenian Genocide in U.S. jurisprudence.

U.S. courts should not politicize the Armenian Genocide, because it is a settled legal question and an integral part of our law of the land.

Seto Boyadjian is an attorney and serves on the national board of ANCA.