By Professor Stan Goldman
Director, Center for the Study of Law & Genocide
Recently, I appeared at second chair before an en banc panel of the U.S. Court of Appeals for the Ninth Circuit in yet another installment of what has been an ongoing saga to obtain payment of insurance claims due to descendants of victims of the Armenian Genocide. The case, Movsesian v. Victoria Versicherung, stems from unpaid policies sold in 1915 to ethnic Turkish Armenians in the prelude to what would become the Armenian Genocide. In my role as director of the Center for the Study of Law & Genocide (CSLG), I have worked on an amicus curae on behalf of the plaintiffs represented by attorneys including alumni Mark Geragos '84 and Brian Kabateck '89 against defendant insurance companies Victoria Versicherung AG, Ergo Versicherungsgruppe AG and parent company Munich Re.
First, a little back story: The side for which I was writing and appearing originally lost in the three-judge Ninth Circuit panel that had declared California's law unconstitutional as an interference with the federal government's exclusive control over foreign policy. The court then reversed itself, in significant part because of the historical argument we set forth in the CSLG's amicus I filed requesting a rehearing after the initial loss. The nation of Turkey, somewhat shaken by the court's reversal, then filed an amicus requesting yet another rehearing. In response to this, the court ordered a hearing en banc, at which time we filed an additional amicus, which included a reiteration of my earlier historical argument. That argument was that the United States had in fact recognized the genocidal nature of the Armenian massacres as a result of Congress's passage of various legislation in the 1980s and that hesitancy to reiterate that in recent times was insignificant. In other words, though you may not have chosen to renew your vows in the last few years, as long as you have not divorced in the interim you're still a married couple based on the original ceremony.
However, larger issues loom. An additional argument as to why California should be allowed to authorize civil lawsuits in order to redress losses during the Armenian Genocide is U.S. authorities are allowed to criminally prosecute the perpetrators of genocide if they come within U.S. borders. It would seem this is a right granted under the United Nations genocide convention to every signatory (of which the U.S. is one), and my interpretation of federal law is that it in turn allows state as well as federal prosecution. If this is in fact correct, then does that not, as a matter of logic, also authorize the lesser remedy of civil actions arising out of genocides including that of the Armenians? It should be additionally noted that while California's law may allow standing to sue, a total of 43 states acknowledge the Armenian massacre as having been a genocide. That is important because the U.S. Supreme Court recognizes as persuasive any overwhelming state support for a given proposition.
Though it may be historical in nature, the inclusion of the massacre of the Armenians as a genocide is a fitting project for Loyola's Genocide Center. In providing the potential for civil redress by these victims and their descendants, the ground is hopefully paved for claims based upon more contemporary mass atrocities.