Legal Remedies in Claiming Restitution for Genocide Losses
September 8, 2007 could be a turning point in the pursuit of the Armenian Cause. On that date, University of Southern California's Institute of Armenian Studies organized an unprecedented symposium on "International Law and the Armenian Genocide: Recognition, Responsibility and Restitution."
After opening remarks by Prof. Richard H. Dekmejian, Director of the Institute, Sarkis Bezelgues, an international lawyer and doctoral candidate in law at the Free University of Berlin, presented a paper on "International Liability and State Succession: the Responsibility of the Turkish Republic for the Armenian Genocide." He stated that the Republic of Turkey is liable for the massive deaths and destruction inflicted upon the Armenian population, because the modern state of Turkey is a continuation and not the successor to the Ottoman Empire. According to Bezelgues, Turkey can be held responsible for the Armenian Genocide since a complete transmission took place of the Ottoman Empire's rights and duties.
Michael J. Bazyler, Professor of Law at Whittier Law School, spoke on "Litigation for Restitution: Comparative Analysis of Armenians and Other Groups." He stated that most lawsuits against foreign governments in U.S. federal courts have not been successful due to the Foreign Sovereign Immunity Act (FSIA) of 1976. Several lawsuits against foreign corporations were settled out of court. Nevertheless, Bazyler pointed out that according to the FSIA, a foreign state is not immune from the jurisdiction of U.S. courts if "rights in property taken in violation of international law are in issue." In response to a question from the audience on the denial of the Armenian Genocide by Shimon Peres, the President of Israel, Prof. Bazyler boldly stated that Peres "doesn't speak for
the Jewish people nor he speaks for the Israeli people."
Dr. David L. Nersessian, Executive Director of the Harvard Law School Program on the Legal Profession, spoke on "Human Rights Litigation in Federal Courts: an Overview." He discussed the complex issues involved in civil claims brought in US federal courts for violations of fundamental human rights, including the Armenian Genocide. These included procedural obstacles such as sovereign immunity, political abstention, and acts of state.
The next speaker was Dr. Payam Akhavan, Professor of International Law at McGill University in Montreal, Canada. His topic was "Criminalizing Historical Truth: Article 301 of the Turkish Penal Code and the Armenian Genocide." He spoke about the case he recently filed with the European Court of Human Rights against Article 301, in defense of Prof. Taner Akcam.
After warm welcoming remarks by Prof. Howard Gillman, Dean of USC College of Letters, Arts and Sciences, attorney Mark Geragos spoke on the federal class action lawsuits that he and attorneys Vartkes Yeghiayan and Brian Kabateck initiated against New York Life Insurance and AXA Corporation for unpaid insurance policies issued before the Genocide. These two cases were settled for $37.5 million. Two other lawsuits are pending against the German Deutsche Bank and Dresdner Bank.
John Evans, the former U.S. Ambassador to Armenia (2004-06), a special guest speaker at the symposium, spoke on "The Armenian Genocide: the International Political and Diplomatic Context of Recognition and Redress." He said that the recognition of the Armenian Genocide was making great strides in the court of public opinion and that a favorable international political climate for the pursuit of the Armenian Cause has developed in recent years. Public opinion within Turkey was also changing gradually in favor of recognizing the Armenian Genocide. He said that taking responsibility for the genocide could take various forms, including setting up a Turkish Fund for compensating the victims and their descendants, financial contributions by Turkey to a future Armenian Genocide museum in Washington, D.C., the rescue and renovation of Armenian cultural monuments in Turkey, and granting a special status for the Ararat and Ani regions.
Dr. Alison Dundes Renteln, Professor of Political Science and Anthropology at USC, spoke next on "Holocaust Denial Litigation: a Comparative Analysis." She said that if Holocaust denial is outlawed in several European countries, then genocide denial by a state such as Turkey could also be outlawed. Prof. Renteln also said that freedom of speech is not an absolute right. For example,
hate speech is banned in many countries. She made a clear distinction between laws against Holocaust denial in Europe and Article 301 in Turkey. She said that in France and Germany, there is censorship in order to accept the past, while in Turkey, censorship is used to deny the past.
The next speaker was Dr. John Torpey, Professor of Sociology at the City University of New York Graduate Center. He spoke on "Beyond Recognition: Truth, Reparations, and the Armenian Genocide." He examined a number of cases of reparations claims-making in order to assess the propriety and prospects of reparations for the Armenian Genocide.
Dr. Alfred de Zayas, Professor of International law at the Geneva School of Diplomacy, could not be present. In his absence, Harut Sassounian read his paper on "The Armenian Genocide in the Light of the Genocide Convention." According to Prof. de Zayas, the U.N. Genocide Convention of 1948 can be applied retroactively because it is declarative of pre-existing international law. Logical consequences of the application of the Genocide Convention to the Armenian Genocide should be the return to the Armenian people the churches and other assets of historic and cultural significance, as well as granting a measureof compensation to the descendants of the victims of the Genocide.
It is noteworthy that in recent years, Turkish leaders, after cockily declaring that they are considering legal action in international courts against Armenians to disprove the reality of the Armenian Genocide, have quietly backed down realizing that they may end up losing such a lawsuit. It was, therefore, not surprising that Turkish Consulate officials in Los Angeles initially
contacted USC symposium organizers last week indicating their interest in attending the conference. Regrettably, according to highly reliable sources, U.S. officials blocked the attendance of the Turkish diplomats.
Now that this groundbreaking symposium has taken place, it is up to political leaders in Armenia and the Diaspora to carefully study the materials presented at this conference by international legal experts in order to seriously consider the steps that could be taken to seek redress for the Armenian Genocide in national and international courts.
An outrageous denial
Bruce Fein rightly acknowledges that Turkey's strategic location is inconsequential to U.S. recognition of the Armenia Genocide, but his unconscionable denial that the events constitute genocide is simply outrageous ("Tawdry genocide tale," Commentary, Sunday).
Contrary to Mr. Fein's assertion, the Armenian Genocide was not the outcome of World War I. At the time of the killings, U.S. Ambassador to the Ottoman Empire Henry Morgenthau warned the State Department that "a campaign of race extermination is in progress.?" Since then, there has been ample validation for the truth - most notably by the 126 Holocaust and Genocide scholars who publicly affirmed the incontestable fact of the Armenian Genocide.
The Anti-Defamation League's Abraham H. Foxman did not need more days to "study" the facts because the evidence overwhelmingly supports what everyone, except Turkey, is willing admit.
BRYAN ARDOUNY
Executive Director
Armenian Assembly of America
Washington
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Why does Bruce Fein defend the Ottoman Empire, which ceased to exist when modern Turkey was born ("Tawdry genocide tale," Commentary. Sunday)? On Sunday he claimed the Armenians sought to secede from the Ottoman Empire in the same way the Confederacy sought to secede from the Union.
Mr. Fein wrote, "For more than three centuries, under the Ottoman millet system, Armenians enjoyed religious, cultural and social harmony. Conflict with the Ottoman Empire was largely provoked by Armenian terrorism and plotting secession comparable to the Confederate States of America." But Mr. Fein undermines his own thesis: If Armenians had enjoyed 300 years of bliss under the Ottomans, why does Mr. Fein claim they engaged in unspecified terrorism and wanted to secede? During World War I, the Arab revolt indicated that other subjects of the Ottomans were unhappy. What terrorism did the States that formed the Confederacy engaged in? If anyone is guilty of terrorism, it was the Ottoman sultan and the Lincoln administration.
Hitler cited the Ottoman genocide of the Armenians to explain how he'd get away with the Holocaust. One wonders if Mr. Fein's Ottomans were inspired by the musings of Union Gen. William T. Sherman: "If the people raise a great howl against my barbarity and cruelty, I will
answer that war is war, and not popularity seeking"; "We are not fighting armies but a hostile people, and must make old and young, rich and poor, feel the hard hand of war"; and "War is at best barbarism." Or, perhaps the Ottomans read of Union General Phil Sheridan's boast that his 1864 Shenandoah Valley Campaign would so destroy all food production "that a crow flying over the valley would have to carry his own rations."
Regarding secession, surely M. Fein knows that the States created the Federal Government and gave up only certain powers, but not their right to secede. In ratifying the Constitution, Rhode Island, New York, and Virginia expressly stated they reserved the right to secede. Other States considered the right of secession self-evident. Mr. Fein conveniently forgets that decades before 1861 it was New England that wanted to secede from the Union.
Just as the West now condemns the Armenian genocide, it realizes the merits of secession. Secession gave birth to America in 1776. The United Kingdom finally allowed Ireland to secede in the 1920s and Scotland is on the same trajectory. The various components of Yugoslavia seceded from that artificiality. The European Union allows members to secede. Mr. Fein's opposition to secession appears entirely selective as he fails to condemn the Turkish Republic of Northern Cyprus.
MICHAEL SHUMAKER
Fairfax
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