Doe v. Karadzic--Appellee's Brief
JANE DOE I, on behalf of herself and all others similarly situated, JANE DOE II, on behalf of herself and as administratrix of the estate of her deceased mother, and on behalf of all others similarly situated, Plaintiffs-Appellants, No. 94-9035 - against - RADOVAN KARADZIC, Defendant-Appellee. S. KADIC, on her own behalf and on behalf of her infant sons BENJAMIN and OGNJEN, INTERNATIONALA INICIATIVE ZENA BOSNE I HERCEGOVINE "BISTER," and ZENE BOSNE I HERCEGOVINE. Plaintiffs-Appellants, - against - No. 94-9069 RADOVAN KARADZIC, Defendant-Appellee. APPELLEE'S BRIEF Ramsey Clark Lawrence W. Schilling 36 East 12th Street New York, N.Y. 10003 (212) 475-3232 Attorneys for appellee Radovan Karadzic Table of Contents PAGE Statement of the Case 1 Argument 5 I. There Is No Jurisdiction Over Appellee 5 A. There Is No Jurisdiction Over Invitees To The United Nations And They Are Immune From Service Under The U.N.-U.S. Headquarters Agreement 5 B. Personal Jurisdiction Over Defendant Must Be Rejected And Service Of Process Quashed to Protect The United Nations From An Impermissible Burden On Its Essential Functions. 8 C. Service Of Process Based On The Transitory Presence Of Defendant In New York Solely To Participate In Peace Negotiations Is Invalid Because It Is Unreasonable And Violates Due Process Of Law. 15 II. The District Court Properly Dismissed Appellants' Actions For Lack Of Subject Matter Jurisdiction 18 A. The District Court Lacked Subject Matter Jurisdiction Under The Alien Tort Claims Act, 28 U.S.C. Sec. 1350 And the Torture Victim Protection Act. 18 B. The District Court Lacked Subject Matter Jurisdiction Under 28 U.S.C. '1331 26 C. Dismissal Was Proper Under Rule 12(b)(1) Rather Than Rule 12(b)(6) 30 III. This Case Should Be Dismissed On The Basis Of The Many Nonjusticiable Political Questions It Presents . 32 Conclusion 36 Table of Authorities Cases page Aquinda v. Texaco Inc., 1994 U.S. Dist. LEXIS 4718 23 Aidi v. Yaron, 672 F.Supp 516 (D.C.D.C. 1987) 30
Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421 (2d Cir. 1987) reversed 488 U.S. 428 (1989) 27 Andros Compania Maritima, S.A. v. Intertanker Ltd., 714 F.Supp. 669 (S.D.N.Y. 1989) 15 Application of Robinson, 18 A.D.2d 449, 240 N.Y.S.2d 82 (1st Dept. 1963) 15 Baker v. Carr, 369 U.S. 186 (1962) 34, 35 Burnham v. Superior Court of California, 495 U.S. 604 (1990) 17, 18 Can v. U.S., 14 F.3d 160 (2d Cir. 1994) 32 Chase National Bank v. Turner, 269 N.Y. 397 (1936). 13 Durst v. Tautges, Wilder & McDonald, 44 F.2d 507 (7th Cir. 1930). 12 Filartica v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), on remand, 577 F.Supp 860 (E.D.N.Y. 1984) 17,18,19,21,22,24 Filer v. McCormick, 260 Fed. 309 (N.D.Calif. 1919) 12 Goldwater v. Carter, 444 U.S. 996 (1979) 34 International Shoe Co. v. Washington, 326 U.S. 310 (1945). 17 Klinghoffer v. S.N.C. Achille Lauro. 937 F.2d 44 (2d Cir. 1991) 9,11,16,18,35
Table of Authorities (cont.)
Cases page Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991). 32 Linder v. Portocarrero, 963 F.2d 332 (llth Cir. 1992). 22 Mattison v. Lichlyten, 162 Cal.App.2d 60, 327 P.2d 594 (1958) 13 Moreo v. Reagan, 140 A.D.2d 313, 527 N.Y.S.2d 547 (2d Dept. 1988). 15 Naartex Consulting Corp. v. Watt, 722 F.2d 779 (D.C.Cir. 1983), cert. denied, 467 U.S. 1210 (1984). 10 Nicols v. G.D. Searle & Co., 783 F.Supp. 233 (D.Md. 1992). 10 Pavlo v. James, 437 F.Supp. 125 (S.D.N.Y. 1977). 12,15 Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.Cir. 1985). 20 Shapiro & Son Curtain CorD. v. Glass, 348 F.2d 460 (2d Cir.), cert denied, 382 U.S. 942 (1965). 11 Stewart v. Ramsay, 242 U.S. 128 (1916). 11 Sullivan v. Tagliabue, 785 F.SUDD 1076 (D.R.I. 1992). 10 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984), cert. denied, 470 U.S. 1003 (1985). 20,22,24,25,26,30,35 Thermoid Company v. Fabel, 4 N.Y.2d 494 (1958). 13 Treadway Inns Corn v. Chase, 47 M.2d 937, 263 N.Y.S.2d 551 (Sup.Ct. Monroe Co. 1965). 12
Table of Authorities (cont.) CASES page

United Food Local 919 v. Centermark Properties, 30 F.3d 298 (2d Cir. 1994). 26, 31 U.S. v. PLO, 695 F.Supp. 1456 (S.D.N.Y. 1988). 5,8 Vincente v. State of Trinidad and Tobago 53 A.D.2d 76, 385 N.Y.S.2d 83 (1st Dept. 1976), aff'd, 42 N.Y.2d 929, 397 N.Y.S.2d 1007 (1977). 7 Walpex Trading v. Yacimientos Petroliferos, 756 F.Supp. 136 (S.D.N.Y. 1991). 16 Youpe v. Strasser, 113 F.Supp 289 (D.D.C. 1953) 213 F.2d 613 (D.C.Cir. 1954). 13 Statutes 8 U.S.C. '1101(a)(15)(c). 2 18 U.S.C. '1091 (Genocide). 28,29 18 U.S.C. '1092 A 28 18 U.S.C. '2331 (Terrorism). 29 18 U.S.C. '2333 A 29 18 U.S.C. '2334 A 29 18 U.S.C. '2339A A 29 18 U.S.C. '2340-40B (Torture) . 28 28 U.S.C. '1331 19,26,27 28 U.S.C. '1350 (Alien Tort claims) 18, 20, 21, 22, 23, 24, 25, 26, 27 28 U.S.C. Note following '1350 (Torture Victim Protection Act). passim N.Y. Statutes Code of Criminal Procedure '855. 14 Table of Authorities (cont.) Rules Fed.R.Civ.P. 12(b)(1). 30,31 Fed.R.Civ.P. 12(b)(6). 30,31 Other Authorities Headquarters Agreement, note following 28 U.S.C. '287 . passim 2 Moore's Federal Practice, &4.10[b], Immunity of Nonresident Parties, Witness, Attorneys and Other Persons to Process, 4-201 (2d edition 1994). 13 1 Weinstein, Korn & Miller, New York Civil Practice, &308.05, Immunity While Voluntarily Attending Judicial Proceeding, 3- 254.45 (1994). 13 2A Weinstein, Xorn & Miller &2303.04, Immunity From Service of Subpoena, 23-43 . Restatement of the Law Third, Restatement of the Foreign relations Law of the United States. 16 Senate Report 100-333, 1988 U.S.C.C.A.N. 4156. 28 Newman and Burrows, Tag Jurisdiction, 209 N.Y.L.J p. 3, c. 1 (April 15, 1993). 15

Statement of the Case

The Croats and Muslims of Bosnia-Herzagovina declared independence from Yugoslavia in a referendum on February 29, 1992. Doe A280. Their government received international recognition, including recognition by the U.S.

Serbs living in Bosnia-Herzagovina, who constituted approximately one third of the population boycotted the referendum and declared their independence from the newly declared nation, claiming part of Boania-Herzagovina as their territory. The Bosnian Serbs formed a government after their declaration of independence. Radovan Xaradzic, a medical doctor who had practiced in Sarajavo in the years before the break-up of Yugoslavia, was chosen President of the newly proclaimed Boanian Serb republic on May 13, 1992. Doe A52. The Bosnian Serb government has not been formally recognized by the United Nations at this time, or generally by U.N. member nations. Such recognition is sought by the Bosnian Serbs in the peace negotiations that continue.

Former Yugoslavia had been torn by violence for many months before the secession of Bosnia-Herzagovina, in Slovenia, Croatia, Krajina and elsewhere. Violence spread quickly in Boenia-- Herzagovina upon its secession. Plaintiffs allege that they are Croatian and Bosnian victims of violence by forces of the Bosnian Serb faction.

United Nations efforts to restore peace among warring factions in former Yugoslavia were quickly extended to the military conflict in Boania. Negotiations called by Cyrus Vance, former U.S. Secretary of State, and Lord David Owen, former U.K. Foreign Minister, acting under U.N. auspices as Co-Chairmen of the International Conference on the Former Yugoslavia, took place in Bosnia, Switzerland and elsewhere during the remainder of 1992. President Karadzic attended when invited.

President Karadzic made three short trips to the United Nations Headquarters in February and March 1993 at the request of U.N. representatives for the purpose of continuing negotiations to secure peace in Bosnia and among its neighbors. Doe A52. While in New York, President Karadzic met with Co-Chairmen Vance and Owen, the Secretary General of the U.N., Boutros Boutros Ghali, the President of the Security Council, Ambassadors of the permanent members of the Security Council for the Peoples Republic of China, France, Great Britain and the Russian Federation, among other Ambassadors, U.N. officials, representatives of U.N. member nations and others in a continuing effort to secure peace. Doe A52.

The only purpose for President Karadzic's travel to the U.S. was to participate in peace negotiations at the U.N. Headquarters at its urgent request. Doe A53. He was admitted to the U.S. under the Immigration and Naturalization Act, 8 U.S.C. llOl(a)(15)(c), as a person entitled to pass in direct transit from the port of entry to and from the U.N. Headquarters District under section 11 of the Headquarters Agreement between the United Nations and the United States, 61 Stat. 758. See, note following 28 U.S.C. '287.

Assistant Secretary of State Richard Boucher described the travel authorization at the Daily Press Briefing in the State Department on February 2, 1993:

MR. BOUCHER: We have approved a C-2 visa, which relates to U.N. activities, for Radovan Karadzic, so that he can participate in the continuing negotiations of the International Conference on the Former Yugoslavia, meetings which are going to be held at the United Nations in New York.

He was invited to U.N. Headquarter. by the U.N. Mediator, Cyrus Vance. She visas will be limited to a single entry to allow travel to the United Nations, and it will restrict him to travel within a 25-mile radius of U.N. Headquarters.

* * *

... He's coming here because the U.N. mediators and negotiators felt it was important that he be here to participate in U.N. activities. And, of course, we have an obligation under the Headquarters Agreement that we have with the United Nations to permit entry of people who are invited to U.N. Headquarters for official business.

* * *

... we consider that Mr. Vance's invitation reflected official United Nations business. We don't believe that there is evidence at this point that Mr. Karadzic's presence would be a threat to the security of Americans or people in the United States, and we do have the obligation under the Headquarters Agreement to allow people to come here for U.N. business. In this case, the business is to continue the negotiations that are aimed at reaching a peaceful settlement....

Under the special conditions of his admission, President Karadzic was required to travel directly from JFK International Airport to the U.N. Headquarters District and on his first trip to remain within ten city blocks of the U.N. Headquarters until his departure directly to JFK airport. On the two subsequent trips at the request of the United Nations for which the U.S. granted visas, President Karadzic was permitted to go anywhere in Manhattan to enable him to attend an Orthodox Church. He was prohibited on all three trips from engaging in any activities in the U.S. outside his official duties at the U.N. Doe, A59.

The United States government provided President Karadzic with a large 24 hour a day protective force from the moment of his arrival to his actual departure through federal law enforcement officers of the Diplomatic Security Service, Division for Dignitary Protection of the U.S. Department of State. See, ,Declaration of Special Agent Roy Anthony Deibler, Doe A232-237.

Appellants in Doe attempted, but failed in a dangerous effort, to personally serve a summons and their complaint on President Karadzic at the end of his first trip as he was being escorted through the lobby of his hotel by a large protective force of federal law enforcement agent.. Doe A234-235. President Karadzic was not aware that an attempt to serve him with process had been made. Doe A283, 235, A53.

President Karadzic was urged by the United Nations to return to the U.N. to resume negotiations just two weeks after his first departure. The United Nations highlights report for February 24, 1993, DH/1337 described the call for talks to resume:

Concerned that the present opportunity to reach a negotiated settlement in Boania and Herzagovina should not be allowed to slip, the Security Council today endorsed the call made by the Secretary-General and the United States President Bill Clinton yesterday for a swift resumption of the peace talks.

In a statement read out by its President, Ahmed Snoussi (Morocco), the Council urged the Boanian leaders to respond quickly and positively to the call and come to New York immediately to resume discussions with a view to the early conclusion of an agreement to end the conflict in the Republic.

The statement also expressed the Council's full support for the efforts of the Co-Chairmen of the International Steering Committee of the International Conference on the Former Yugoslavia to bring the talks to a successful conclusion. Doe A49.

During his second visit a summons and a copy of the complaint in Kadic was handed to President Karadzic by Agent Deibler who received it from a deputy U.S. Marshal pursuant to a federal district court order for substituted service. Doe, A53, 235-36.

The District Court dismissed both complaints for lack of subject matter jurisdiction without deciding whether there was personal jurisdiction, legally sufficient service of process , or a justiciable claim. Appellants have argued that personal jurisdiction exists, that service of process was sufficient and that their claims are justiciable. See, Doe brief, VIII, p. 57, et seq; Kadic brief, II, p. 52, et seq. and III, p. 56, et seg.

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