Kerkonian and Koumjian Speak about Civil and Criminal Legal Perspectives on the Destruction of Culture and Genocide at the Armenian Museum of America

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WATERTOWN – The effects of the Armenian Genocide on successive generations are comprehensive, yet too often only the destruction of human life is considered and not the accompanying cultural effects. Two legal experts, Karnig Kerkonian and Nicholas Koumjian, discussed this cultural dimension from the perspective of jurisprudence on March 20 at the Armenian Museum of America in a colloquium called “Reclaiming the Forgotten Survivors of Genocide: Legal Perspectives on the Fate and Future of National Artifacts, Collective Identity and Cultural Markers.”

Kerkonian currently leads the international practice group at Kerkonian Dajani LLC, focusing on international transactions, foreign sovereign immunities litigation and commercial sanctions regime matters. He holds an A.B. magna cum laude in Government from Harvard University and two law degrees—a J.D. from the University of Chicago and a post-doctoral Diploma in International Law from Cambridge University. Kerkonian joined Mayer Brown LLP in Chicago working on federal litigation and appeals and, in 2003, began his own practice.

Koumjian is the international co-prosecutor in the Extraordinary Chambers in the Courts of Cambodia. From 2007 to 2013, he was trial counsel and Senior Appeals Counsel for the prosecution of Charles Taylor, former President of Liberia for crimes in Sierra Leone. He previously served as the chief prosecutor for the UN-staffed and funded Serious Crimes Unit in East Timor and worked as a trial lawyer at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the State Court of Bosnia and Herzegovina and the International Criminal Court (ICC).

After an introduction from Jennifer Liston Munson, new executive director of the Armenian Museum of America, Kerkonian delivered a talk on what he called “The Dignity Discourse,” to the accompaniment of PowerPoint illustrations. His focus was on the civil context of jurisprudence. He attempted to provide some lessons from the work of the European Court of Human Rights.

Kerkonian declared that Armenians after the Genocide are living in a post-traumatic period which affects their perception and even clouds their view of their own identity. The purpose of genocide is in part this, he pointed out: to erase the people but also to erase the nation in the minds of the people who remain. Territory is only the beginning of what survivors have lost, Kerkonian said, and placed his focus on cultural markers, which are shared features such as language and cultural values. There are opportunities for mitigation, to save and give rebirth through civil litigation, which Kerkonian called, “litigating for human dignity.”

The European Convention on Human Rights provides one good place to start, he said. Article 8 Paragraph 1 proclaims, “Everyone has the right to respect for his private and family life, his home and his correspondence.” Kerkonian provided resumes of several recent cases in the European Court of Human Rights which on the surface have no connection with Armenians and their genocide, but which turned out to point a way toward protecting Armenian rights, traditions and the reputation of their ancestors.

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In Putistin v. Ukraine (2013), a recent newspaper article about a soccer match in Kiev 75 years ago suggested that Putistin’s father collaborated with the Gestapo. The court accepted that this affected the son’s “private life” and identity.

In Aksu v. Turkey (2012), Aksu argued that a book negatively stereotyping the gypsies of Turkey (Ali Rafet Özkan, Türkiye Çingeneleri) had a negative impact on his own identity and dignity. The court agreed that the negative stereotyping of an ethnic group could impact the group’s sense of identity and its members’ feelings of self-worth and self-confidence, and thus affect the “private life” of the latter.

In Jelsavar v. Slovenia (2014), the court ruled that an attack on the reputation of an ancestor coming in the form of a work of literary fiction could violate a person’s rights under Article 8 Paragraph 1 of the Convention.

Even in a case which ostensibly Armenians lost, Perincek v. Switzerland, in which Amal Clooney represented Armenia as an interested third party, the court accepted that the law criminalizing Genocide denial and thus interfering with Perincek’s statements was intended to protect the identity and the dignity of present-day Armenians. The court thus accepted that this group identity can be handled within the ambit of Article 8 Paragraph 1.

In other words, Kerkonian found that Article 8 Paragraph 1 can give Armenians a way to protect their rights and traditions and the reputation of their ancestors from the destructive and insulting approach of Turkey today, whether it be derogatory statements of Turkish politicians or destruction of physical sites of Armenian culture.

He cited a few cases of the European Court of Human Rights giving some guidance on how Armenians could approach their case. For example, in Broniowski v. Poland (2004) the Court accepted creating a type of class action suit called a pilot procedure through Rule 61 in case of systematic violations by a state—in this case, for approximately 80,000 people deprived of their possessions due to a border change. Kerkonian found that this Rule 61 approach or tool was used in a number of cases pertinent to Armenians.

Manushasge Puto v. Albania allowed lumping 20 cases of Albanian lands confiscated under the communist regime the compensation for which was not enforced. The same procedure was used to get payment for old monies and bank deposits, as in Suliagic v. Bosnia and Herzegovina (2009), with 1,350 similar cases before the court, or for cases of restitution or compensation of nationalized properties, as in Atanasiu v. Romania (2010). The court dealt with enforcement delays in Burdov v. Russia (2009), in which the Russian state failed to execute judgment debts.

Kerkonian found that one of the most interesting cases the Court accepted in this realm with Rule 61 is Kuric v. Slovenia (2012), in which a group of nationals of the former Yugoslavia lost their status as permanent residents following Slovenia’s declaration of independence in 1991. They became “erased” people with no status of citizenship in any country.

All of the above cases deal with elements of the indignities faced by Armenians, “erased” in citizenship status, deprived of titles and deeds to their lands, monies and bank deposits, with nationalized properties, and facing delayed enforcement.

Armenians, as descendants of survivors of the Armenian Genocide, should therefore, Kerkonian said, start looking at their identity based on their cultural markers because there is significant value both in the historical and the legal sense therein. He concluded that “There are real avenues that I think a creative approach would allow us to build on in order to

Nicholas Koumjian (photo: Aram Arkun)

reclaim, in order to create and in order to protect the dignity of not only of our ancestors, but as importantly, our self-worth, our dignity as Armenians and for our progeny. I think that there is a bold vision that we need to be reconsidering, in terms of not looking at it from the standpoint of victimization but from the standpoint of mitigation, as in the standpoint of looking for opportunities to make sure that what those eyes [of the Armenian survivors] have seen, are things that our children and our progeny will be able to see too.”

Koumjian then began his talk and explained that it would concentrate on the criminal aspects of the destruction of culture, which can be crimes against humanity. There is international recognition through various legal categories that such acts can be criminalized. For example, in a recent case from Mali at the International Criminal Court, Koumjian said, the accused pled guilty to the destruction of a series of mausoleums and a mosque, which was deemed as important parts of the local culture, and was sentenced to nine years in prison on a plea bargain.

Genocide is the more complicated of these legal categories. The term, invented by Raphael Lemkin, started to be used around World War II, and was further defined as part of international law in the Genocide Convention of 1948. It combines five different kinds of acts, with a mental element.

Koumjian examined a number of aspects of that definition and provided illustrations. For example, to qualify as genocide, the intent to destroy a permanent racial, ethnic or national group must exist. In the case of the Muslim Rohingya of Myanmar, there is debate over whether they form a religious, ethnic, or national group, but under the accepted UN definition it does not matter, since they do form a permanent group and are identified as such by other Burmese.

Furthermore, the intent does not have to be to kill every member of the group in the world, but to destroy the group in whole or in part. In Srebenica, eight to nine thousand men and boys, 13 to 65 years old, were killed during three days in the summer of 1995 but the elderly men and very young children and women were put on buses and transported out of the area. Both the Yugoslav tribunal and the International Court of Justice ruled it as genocide because of the intent to destroy the Bosnian Muslims within that municipality, which was deemed a substantial part of the total Bosnian Muslim population. Similarly, Koumjian pointed out, the fact that less substantial killings of Armenians took place in places like Istanbul in 1915 did not mean that what took place was not genocide.

Koumjian spoke about the situation in Cambodia, where the Khmer Rouge targeted ethnic Khmer as a political and economic group, which does not fit the UN definition of genocide. However, Koumjian said, they also did target two other smaller groups, the Vietnamese, who were the “hereditary enemy” there, and the Cham Muslims, who resisted the Khmer Rouge attempt to prohibit the practice of religion.

The number of Vietnamese killed was quite small, Koumjian said, because at the beginning of the regime they forced most to leave the country. The Khmer Rouge said then that they gave the Vietnamese the opportunity to leave, and anyone who did not leave after two years would be killed, even those only half-blooded Vietnamese. Oddly, if a Vietnamese woman was married to Khmer man, they would kill their children, but not vice versa, because they believed nationality was obtained through the mother.

The situation of the Muslim Cham is relevant to the Armenian case, where many Armenians converted to save their lives, and children were taken from the group to be raised as Muslims in Kurdish or Turkish homes. After a short period of time the children began to lose their identity.

The prosecution argued to the judge in the Cambodian case that if you tell someone that they only will live if they convert, and a religious group only exists if you practice this religion, then you are destroying the group through such actions and committing genocide. Cham Muslim leaders and those who refused to convert were targeted, though some Cham were allowed to survive and scatter into other areas.

In other words, a group can be destroyed in ways other than physical killing. Another example is when ISIS tells Christians in Syria or Yazidis that they must convert or die, this shows the intent to destroy a group. The use of rape as a weapon of war by states or organizations like ISIS is also recognized in criminal tribunals as a genocidal tool intending to prevent the cohesion of a group.

Koumjian noted that the examples he was discussing are very relevant for the prosecution of current genocidal processes, not only with ISIS, but also for Myanmar’s Rohingya.

He cited the William Saroyan line, “Whatever happens anywhere in the world to anyone in the world is everybody’s business,” to indicate that there are crimes in the world of such significance that they are everybody’s business. It is everyone’s business to prevent them from happening. Koumjian declared, “I think that Armenians as a victim group, a group that has experienced genocide, have a particular obligation and responsibility to speak out against genocide and other crimes against humanity occurring anywhere in the world.”

After a question-and-answer session, Kerkonian donated to the Armenian Museum of America the transcript of the first and only commemoration of the Armenian Genocide held in Chicago in the courtroom of Judge Samuel Der-Yeghiayan, the first foreign-born Armenian judge on the US judiciary, in 2015. Born in Aleppo, he just retired several weeks ago, and Kerkonian knew him well.

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