USSUPREMECOURT

By Edvin Minassian

(translated from the original article in Turkish Published by Agos Weekly Newspaper on June 14,2013)

Edvin MinassianPursuant to a decision published this week, the Supreme Court of the United States rejected the appeal filed by Armenian plaintiffs of the ruling by a lower court in favor of the German Insurance Company Munich Re (Munchener Ruchvershieherungs-Gesellschaft Aktiengesellschaft).

Newspaper headlines (in Turkey) reported this as “The United States Supreme Court rejects the Armenian Thesis”. This is not an accurate representation of the ruling. The question before the High Court was not the accuracy of the Armenian Thesis (or the Cause/ Position);  it was not whether the Genocide did or did not happen.  The real question before the Court centered around whether or not a conflict existed  between the State of California and the federal government of the United States of America that involved an alleged infringement by California on foreign policy powers of the federal government. Depending on the existence of such conflict of authority, the follow up question the Court had to address was whether or not a California Statute should be stricken down. That was the dispute before the Supreme Court.

HISTORY OF THE LEGAL CASE:

To be able to understand this complex matter better one needs to review the history of the legal proceedings. Approximately ten years ago the Legislature of the State of California passed a law extending the statute of limitations for filings against certain life insurance carriers. Generally, and based upon legal tradition,  laws that involve regulations and obligations pertaining to insurance companies have been the domain of individual and sovereign states.  In other words, insurance laws differ from each other in New York, Florida and California. The legislation in question was passed based upon the understanding of the legal and constitutional traditional powers possessed by the State of California; and provided a ten year extension of the statute of limitations for filing law suits against life insurance companies, by the  heirs of those individual citizens of the Ottoman Empire, who owned life insurance policies, and lost their lives, were exiled or escaped to save their lives, between 1915 and 1923.

The key area of contention of the statutory language is its reference to the time period  of 1915 through 1923, as  the era commonly known to be the “Armenian Genocide”. Nevertheless, despite the misrepresentations in the Media, the deceased policy holder is not mandated to be a victim of the Armenian Genocide or exclusively of Armenian ancestry. In other words, the deceased person could have passed away in his house in Kayseri or Sivas due to natural causes and this insured (Ottoman) citizen could have been a Greek, or a Turk or an Albanian.  Due to the prevailing chaotic circumstances of the time period, the present day  heirs would have not been able to have access to the insurance policies, and this law would enable them to pursue their just claims for compensation against the German insurance company.  The statutory reference in essence is descriptive of the time period as it is known to the California Legislature.  The right to compensation, however, does not rest on proof that the description of the Era is accurate. Consequently, however, the descriptive terminology rests at the core of the legal dispute.

Hence a legitimate private lawsuit against a private German Insurance company, all of a sudden gets turned into an international dispute due the  terminology used in its enabling legislation.  The fact that the parties to both sides of the dispute are either private individuals or private companies gets totally ignored.  Moreover, the blaring injustice of  the windfall obtained by German insurers who sold thousands of policies, collected premiums and never had to pay up when the time came; got cast aside.  One of the most disturbing aspects of these cases is the evidence that was discovered in the course that the French, British and German life insurance companies had a policy to target Armenians in general as part of their sales efforts in the Ottoman Empire. The marketing and sales training manuals  taught salespersons that compared to other ethnic and religious groups  the Armenians were more sensitive to providing for their families should they pass away; while the others had shied away for such close contemplations of their own mortality; and thus were less attractive as potential customers of life insurance policies. These observations do not necessarily establish the accuracy of such stereotyping, but do explain the fact that Armenians disproportionately held more policies than other groups.

The U.S. Supreme Court decision did uphold the decision by the 9th Circuit of the U.S. Court of Appeals, reached after a long period contemplation, various reversals and historic oral arguments,  determining that the California law interfered with the foreign policy powers and authority of the federal government. Prior to the ruling upholding the 9th Circuit decision, the Supreme Court asked the Obama Administration their views as to the legal dispute.  The Solicitor General who represents the Executive Branch before the Supreme Court, presented an extraordinarily long position statement which was factually and legally questionable. The Solicitor General, also supported by the State Department indicated that they were concerned and apprehensive about the implications of this law on foreign policy; expressing support for the decision of the Court of Appeals.  One of their most controversial contentions in that brief was that the issue of compensation for Armenian Victims had been resolved via the Lausanne II Treaty between the U.S. and the Republic of Turkey; despite the fact that is an invalid treaty not even remembered by most observers. Specifically, that was a Treaty that was never approved by the Senate and therefore had no legal effect as an international treaty. Even if it were a valid treaty, it had no impact on legal disputes for compensation between private individuals and business entities.

Another irony is the fact that this California Statute was found to be unconstitutional  since the terminology offended Turkey as alleged by the defendants and the Obama Administration; while over 40 State Legislatures and Governors officially have and continue to recognize the Armenian Genocide; and President Obama in his April 24 statements, while avoiding the usage of the word Genocide to the dismay of Armenians, utilizes words and phrases which should have the same end result of the perceived offensiveness.

In similar lawsuits that involved other life insurance companies, New York Life and French carrier AXA had chosen to reach settlements with the heirs. The German insurer Munich Re rejected that path and by litigating this all the way up to the U.S. Supreme Court was able to prevail due to a favorable interpretation of the Constitution of the United States on an issue involving federalism, which gives primacy to the federal executive on matters that are deemed to involve foreign affairs. However, the real question one must ask and answer is whether or not justice was rendered. When considered in the historical perspective isn’t the responsibility of Germany even greater? More importantly, considering what took place in Anatolia in 1915, why should the Republic of Turkey not pass a law similar to the one passed in California?

The insurance companies conducted business within the borders of Turkey, they sold insurance policies and the purchasers are certainly not alive today. Naturally, the documentation that would have entitled their beneficiaries to the proceeds disappeared in the chaotic atmosphere, and only surfaced through valiant efforts of attorneys who pursued these companies and compelled the release of the names of policyholders. Whomever has a grandfather or grandmother who had purchased life insurance policies from these companies within the borders of the Ottoman Empire (the legal predecessor of the Republic); and had been victimized during World War I, irrespective of  their cause of death,  should as their legal heirs  be entitled to their contractual rights.  Isn’t  unjust enrichment a reprehensible form of injustice that offends our collective notion of justice?

Article source: http://massispost.com/archives/8871