9th Circuit Hears Genocide Land Grab Case

(CN) – Attorneys for Armenians seeking reparations for land seized by Turkey during the 1915 Armenian Genocide told a Ninth Circuit panel Monday that relevant international laws condemning Turkey’s actions existed at that time and should factor in current litigation.

At issue before the panel is whether the court can make a determination on international war crimes policy and whether or not the statute of limitations has expired for families of victims seeking reparations from the current Turkish government.

U.S. Circuit Judge Andrew Hurwitz asked an attorney for plaintiffs, heirs to landowners who were forced to flee the former Ottoman Empire, what international laws existed in 1915 that expressly “forbade that conduct.”

Kathryn Boyd of McKool Smith said it is well-established in international law that the “expropriation of property” by a nation against sovereign people is a crime against humanity.

“U.S. law, Turkey’s military tribunals, laws recognized by allies at the Paris Peace Treaty and the United Nations have acknowledged that what happened to the Armenian people was unlawful,” Boyd said. “The conduct has been condemned repeatedly.”

“There is no doubt that we condemn it now,” Hurwitz said, adding that the panel must consider whether any laws forbade genocide before the Nuremberg trials of 1945-1946.

Descendants of Armenian Genocide victims said in their December 2010 lawsuit that the Ottoman Empire illegally seized their ancestors’ land and unlawfully profited from its sale.

Plaintiffs Alex Bakalian, Anais Haroutunian and Rita Mahdessian sought roughly $65 million in damages and a judgment that Turkey could be tried in U.S. courts for actions related to their genocide of 1.5 million Armenians within the former Ottoman Empire.

But U.S District Judge Dolly Gee dismissed the case in 2013 under the political question doctrine which says certain questions – as in this case, determining whether Turkey’s actions were genocide – should be handled by the executive branch, not the courts.

Plaintiffs, however, found a silver lining in Gee’s decision that U.S federal courts could hold Turkish banks accountable for seizing land from Armenians during the genocide.

On appeal, plaintiffs said in their Oct. 21, 2013 brief that the district court didn’t have to find that an international law violation occurred in order for Foreign Sovereign Immunities Act jurisdiction to hold in the case.

“In effect, the district court’s decision undermines the [Foreign Sovereign Immunities Act’s] statutory objective to remove diplomatic pressure by foreign sovereigns from the equation of sovereign immunity,” plaintiffs said in their brief, adding that the courts can make a policy determination “without expressing a lack of respect for the political branches.”

The Central Bank of Turkey and state-owned bank Ziraat Bankasi, named defendants in the lawsuit along with Turkey, said in their cross appeal of Gee’s decision that the case should be dismissed for lack of jurisdiction.

The banks also argued the Foreign Sovereign Immunities Act granted them immunity since the law protects foreign states against unlawful expropriation claims by their own citizens.

“International law generally affects only the relations between sovereign states, not the acts of a state toward its nationals,” the banks said in their Nov. 5 court brief.

An attorney for the banks, Neil Soltman of Mayer Brown, told the panel on Monday that no U.S. laws existed in 1915 to condemn Turkey’s actions.

“But the U.S was party to the 1907 [Hague] convention,” Circuit Judge Kim Wardlaw said.

“You must consider the laws that were in existence at the time of the acts,” Soltman said, adding that the act only deals with “expropriations, not takings” that are in violation of international law.

Plaintiffs included in their complaint documents proving legal ownership and unlawful seizure of property.

Although the banks challenged the December 2010 complaint, the federal court entered a default against Turkey for failing to respond and found that the banks “engaged in behavior apparently designed to thwart service of process,” including denying access to plaintiffs’ process server.

Turkey has resisted calling the historical event a genocide, and the issue is considered controversial as the U.S. seeks to normalize relations with their NATO ally.

The U.S. military’s Incirlik air base currently sits on the land in question, which is located in the Adana region of Turkey.

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