Sassounian's column of April 4, 2013

Federal Judge Wrongfully Dismisses

Lawsuit on Armenian Properties in Turkey

 

By Harut Sassounian

Publisher, The California Courier

 

Federal Judge Dolly M. Gee, wrongfully claiming lack of jurisdiction, dismissed a lawsuit on March 26, filed by Armenian-Americans demanding compensation from the Republic of Turkey for confiscating their properties during the Armenian Genocide.

 

Attorneys Berj Boyajian, Mark Geragos, Ara Jabagchourian, and Brian Kabateck had filed a class action lawsuit on July 29, 2010, on behalf of Garbis Davoyan of Los Angeles, Hrayr Turabian of New York City, and all Armenians whose ancestors had real estate holdings in Turkey. The grandparents of Davoyan and Turabian owned land nearAintab and Adana. The complaint also charged Turkey’s Central Bank and Ziraat Bankasi of unjust enrichment by benefiting from the proceeds of the confiscated Armenian properties.

 

Since the Republic of Turkey and its two major banks contended that US courts lacked jurisdiction over foreign entities due to sovereign immunity, the Armenian plaintiffs argued that the lawsuit should proceed due to two exceptions to the Foreign Sovereign Immunities Act (FSIA): "Commercial Activity" and "Expropriation."

 

The Federal Judge ruled that both of these exceptions did not apply in this case. She found the banks’ commercial role in the US to be minimal and unrelated to the claimed grievances. She ruled that the expropriation exception is also not valid because the property was not "taken in violation of international law." She stated that the appropriation of personal property contravenes international law if: 1) it does not serve a public purpose; 2) it discriminates against or singles out aliens; and 3) the foreign government does not pay compensation. Judge Gee held that Armenians were citizens of the Ottoman Empire based on the Law of Nationality of January 19, 1869, "which treated all persons found within the Ottoman Empire as Ottoman subjects." According to the Judge, this law "remained in effect until May 23, 1927, when Law No. 1041 stripped Turkish citizenship from the Armenians who had fled or were deported from the Empire during the events at issue in this lawsuit." She concluded: "Legally, Armenians whose property was taken and who were deported from the Ottoman Empire were citizens at the time."

 

In making these rulings, Judge Gee made a series of grave factual errors and misapplied the law. Her contention that Armenians were Ottoman citizens at the time of the genocide and deportations, and therefore not subject to US court jurisdiction, is flatly wrong. In a telegram dated Sept. 9, 1915, Minister of Interior Talaat issued the following order: "The rights of Armenians to live and work on Turkish soil are totally abolished." Thus, Talaat had revoked the Armenians’ Ottoman citizenship as of Sept. 9, 1915, making them non-citizens at the time of the expropriation of their properties. This fact alone invalidates the fundamental premise of the Judge’s ruling that the Federal Court has no jurisdiction over Turkey’s expropriation of its citizens’ property.

 

Furthermore, since Ottoman citizenship was imposed upon native Armenians after their territory was overrun by Ottoman armies, Armenians were forced to become the unwilling subjects of a foreign invader. The Judge’s erroneous ruling leads to the absurd and dangerous notion that the rights of people under occupation can be violated without any recourse to international law, once the conquering nation declares them to be its citizens.

 

Judge Gee committed a second serious error when she made the convoluted argument that expropriation of foreign properties could have fallen under the jurisdiction of her court if carried out in conjunction with acts of genocide, because "genocide violates international law." However, she ruled that the Armenian lawsuit does not meet the foregoing criteria, because it involves a "Political Question" related to foreign policy that falls under the jurisdiction of the executive and legislative branches, not the judiciary. She completely ignored the fact that the lawsuit was not filed under a claim of genocide, but as a violation of international law that includes Crimes Against Humanity, but not necessarily genocide. Apparently, the Judge was not aware that the US government on several occasions had recognized the Armenian Genocide, making her argument about the separation of powers completely meaningless.

 

There is a good possibility that the Federal Court of Appeals would reverse Judge Gee’s baseless and erroneous ruling. The plaintiffs’ lawyers could strengthen their case considerably by pointing out some of the factual errors in her ruling, as well as rectifying the shortcomings in their own filing.

 

Lawsuits 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.