By Harut Sassounian
Publisher, The California Courier
The United States Court of Appeals for the Ninth Circuit heard oral arguments in Pasadena, California, on August 4, regarding two lawsuits on Armenian properties confiscated by Turkey in 1915-23: Bakalian and Davoyan vs. the Republic of Turkey and its Central and Ziraat Banks. A District Court had dismissed these lawsuits in 2013 on grounds that they dealt with a political issue which came under the purview of elected officials, not the courts.
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The Armenian plaintiffs were represented by Kathryn Lee Boyd of Brownstein Hyatt Farber Schreck, and Mark Geragos of Geragos & Geragos. The Turkish side was represented by Neil Soltman of Mayer Brown. The panel of federal appeals court judges consisted of Alex Kozinski, Stephen Reinhardt, and Kim Wardlaw.
The three Judges stated that since a sovereign country has the right to appropriate the property of its citizens, a U.S. court would not have jurisdiction to intervene in such cases unless they were accompanied by violations of international law or genocide.
Judge Kozinski repeatedly questioned the appropriateness of the references to the Armenian Genocide as one of the two Armenian cases had mentioned it as one of the reasons for the lawsuit. “Our government has resisted calling this a genocide. Our government has been quite adamant, as far as I can tell, that this is not genocide,” Judge Kozinski contended. “Federal Courts have to take a position that is possibly contrary to the position that has been adhered to by our government, the Executive Branch of our government, for decades.”
When Geragos advised Judge Kozinski that the U.S. House of Representatives and Pres. Reagan had both acknowledged the Armenian Genocide, Judge Kozinski oddly responded: “Pres. Reagan hasn’t been President for … decades.”
The Judge’s comment made no sense. The facts of the genocide and its acknowledgment have not changed, just because those tragic events and their recognition occurred decades ago! In fact, the U.S. government acknowledged the Armenian Genocide in 1951 in an official document submitted to the World Court.
Throughout the hearing, Judge Kozinski persistently asked if the plaintiffs’ attorneys would agree to set aside the Armenian Genocide issue for purposes of this lawsuit. Attorney Geragos finally consented in order to pave the way for the lawsuit to proceed, particularly since there were a dozen other Turkish violations of international law that fulfilled the requirements of jurisdiction.
Attorney Boyd pointed out that it is not necessary to prove genocide in order to bring a lawsuit under the Foreign Sovereign Immunity Act (FSIA) of 1976. Actually, “Crimes against Humanity” are also violations of international law. On May 29, 1915, France, Great Britain and Russia issued a Joint Declaration accusing Turkish government officials of committing “Crimes against Humanity and Civilization” and warned that they will be held responsible for these crimes.
Judge Kozinski also questioned the reason why these lawsuits were filed 100 years after the fact, prompting Geragos to assert that there was no statute of limitations under FSIA. He further stated that the elapsed time made no difference, since there was an “on-going violation” because Turkey kept these properties and did not turn over the accrued rents to the Armenian owners for decades.
Geragos also told Judge Kozinski that the concept of a sovereign nation appropriating the properties of its own citizens does not apply in this case, since Armenians were stripped of their citizenship by official Turkish decrees, and deported from the country.
Only after attorney Boyd explained to Judge Kozinski that the confiscation of Armenian properties by the Turkish government was “arbitrary and discriminatory,” the Judge seemed to understand the issue and proceeded to tell Neil Soltman, the attorney for the Turkish Government, that there was a difference between appropriating a house in Connecticut under eminent domain and the taking of all houses belonging to a particular race or religion which would be a violation of international law, and therefore legally actionable by a U.S. court.
Finally, a seemingly casual remark by Judge Wardlaw, referring to Turkish President Erdogan as “this crazy President,” may be an indication that U.S. government officials are getting fed up with Erdogan’s ‘crazy’ antics and would henceforth allow the justice system to proceed with cases dealing with gross Turkish violations of human rights and not hide behind politically motivated judicial cover up.
The Federal Court of Appeals is expected to issue its decision within the next 90 days.