------------------------------ UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------------------------- JANE DOE I,on behalf of herself and all others similarly situated, and 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, -against- RADOVAN KARADZIC Defendant-Appellee --------------------- ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ------------- APPELLANT'S REPLY RHONDA COPELON BETH STEPHENS CELINA ROMANY MATTHEW J. CHACHERE International Women's JENNIFER GREEN Human Rights Clinic PETER WEISS CUNY Law School MICHAEL RATNER 65-21 Main Street JULES LOBEL Flushing, NY 11367 Center for Constitutional Rights New York, NY 10012 HAROLD HONGJU KOH 212-614-6464 RONALD C. SLYE Allard K. Lowenstein JUDITH LEVIN International Human International League for Human Rights Law Project Rights 127 Wall Street 432 Park Avenue South New Haven, Ct.06520 New York, NY 10016 203-432-4932 212-684-1221 Attorneys for Plaintiff- Appellants (Appearances continued on inside) (appearances continued) On the Brief CHARLOTTE BURROWS LINDA KELLER DANIYAL MUEENUDDIN WENDY WEISER SWATI AGRAWAL BRUCE BROWN CARL GOLDFARB JON LEVITSKY STEVE PARKER MAXWELL S. PELIZ AMY VALLEY Allard K. Lowenstein International Human Rights Law Clinic 127 Wall Street New Haven, CT 06520 203 432 4012 DEENA HURWITZ Northeastern University School of Law 400 Huntington Avenue Boston, MA 02115 TABLE OF CONTENTS Table of Authorities ii Introduction 1 I. This Court has Personal Jurisdiction over Karadzic, who was Physically Present Within the Southern District when Served and is Not Immune from Suit 2 A. Physical Presence at the Time of Service is Sufficient to Confer Personal Jurisdiction over Defendant 2 B. As a U.N. Invitee, Karadzic is not Immune from Service of Process II. This Court has Subject Matter Jurisdiction over Plaintiffs' Claims for Genocide, War Crimes, Crimes Against Humanity, Torture and Summary Execution 11 A. The District Court Failed to Follow this Circuit's Filartiga Doctrine 11 B. As the Leader of a De Facto Regime, Karadzic HaS Violated International Law 13 C. The Law of Nations Binds Karadzic When Acting Under the Color of Law of the Government of Yugoslavia 18 D. The Law of Nations Binds Private Actors Who Commit Genocide, War Crimes and Crimes Against Humanity 18 III. The Political Question Doctrine Does Not Render this Case NonCJusticiable 21 IV. Plaintiffs' Factual Allegations are Entitled to Deference at this Stage of these Proceedings 24 Conclusion 25 TABLE OF AUTHORITIES CASES Aquinda v. Texaco. Inc., 1994 U.S. Dist. LEXIS 4718 19 Amerada Hess Shinoina Corp. v. Argentine Republic, 830 F.2d 421 (2d Cir. 1987), rev'd on other grounds, 488 U.S. 428 (1989) 12,13 ARW Exploration Corp. v. Aquirre, 45 F.3d 1455 (lOth Cir. 1995) 10 Baker v. Carr, 369 U.S. 186 (1962) 23 Burnham v. Superior Court of California, 495 U.S. 604 (1990) 2,3,4 Can v. U.S., 14 F.3d 160 (2d Clr. 1994) 23 Filartica v. Pena-Irala, 630 F.2d 876 (2d C'r. 1980) passim Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D.Cal1987) 12 Foxworth v. Permanent Mission of the Republic of Uganda to the United Nations, 796 F. Supp. 761 (S.D.N.Y. 1992) 9 International Shoe Co. v. Washington, 326 U.S. 310 (1945) 4 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986) 21 Klinahoffer v. S.N.C. Achille Lauro,937 F.2d 44 (2d Cir. 1991) passim Lamb v. Schmitt, 285 U.S.222 (1932) 11 Lamont v. Woods, 984 F.2d 825(2d Cir. 1991) 23 Linder v. Calero-Portocarrero, 963 F.2d 332 (llth Cir. 1992) 20 Nixon v. United States, 113 S.Ct. 732 (1993) 22 Pappas v. Francisci, 119 N.Y.S.2d 69 (1953) 5 People v. Doe, 101 Misc. 2d 789, 421 N.Y.S.2d 1015 (1979) 5 People v. Leo, 103 Misc. 2d 320, 425 N.Y.S.2d 709 (1979) 5 Rhee v. Dahan, 116 Misc. 2d 548, 457 N.Y.S.2d 684 (1982) 5 Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994) 24,25 Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) 14 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984), cert. denied, 470 U.S. 1003 (1985) 14,15 Uniroyal. Inc. v. Sperberg, 63 F.R.D. 55 (S.D.N.Y. 1973) 11 U.S. v. Coplon, 84 F. Supp. 472 (S.D.N.Y. 1949) 9 U.S. v. Egorov, 222 F. Supp. 106 (E.D.N.Y. 1963) 9 U S. v. Fitzpatrick, 214 F. Supp. 425 (S.D.N.Y. 1963) 5,8 U.S. v. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y. 1988) 9,21 U.S. STATUTES Alien Tort Claims Act, 28 U.S.C. ' 1350 12,21 Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) passim 28 U.S.C. ' 1331 21 MISCELLANEOUS U.S. GOVERNMENT SOURCES Bureau of Consular Affairs, U.S. Department of State, Report of the Visa Office: 1993 (1994) 9 Committee on Foreign Relations, Report on the International Convention on the Prevention and Punishment of the Crime of Genocide, Executive Report 99-2, Genocide Convention Implementation Act of 1987, 99th Cona. 1st Sess. (1985), 28 I.L.M 754 (1989) 20 Genocide Convention Implementation Act of 1987, 18 U.S.C. ' 1091 (1988) The Pueblo, 58 Department of State Bulletin 196 (l968) 15 Statement at international conference on the former Yugoslavia, Geneva, Switzerland, Dec. 16, 1992, 3 U.S. Dep't of State Dispatch 52 (Dec. 28, 1992) 16 U.S. Department of State, Country Reports on Human Rights Practices for 1993 (1994) 16 LAW REVIEWS AND TREATISES T. Meron, Rape as a Crime Under International Humanitarian Law, 87 Am. J. Int'l L. 424 (1993) 17 L. Newman & M. Burrows, Tag Jurisdiction, New York Law Journal, April 15, 1993. 3 W.M. Reisman, The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion, 83 Am.J.Int'l L. 519 8 Restatement (Third) of Foreign Relations Law of the United States (1986). passim The Supreme Court,1992 Term, Leading Cases, Federal Jurisdiction & Procedure: Political Ouestion Doctrine- Senate Control Over Impeachment Trial Procedures, 107 Harv.L.Rev. 254 (1993) 22 13 C. Wright, A. Miller & B. Cooper, Federal Practice and Procedure (2d ed. 1984). 11 MISCELLANEOUS INTERNATIONAL DOCUMENTS Agreement Between the United States and the United Nations Regarding the Headquarters of the United Nations, G.A. Res. 169 (II), 11 U.N.T.S. 11, No. 147 (1947), 61 Stat. 756; T.I.A.S. No. 1676, outhorized by S.J. Res. 144, 80th Congress, 1st Sess., Pub. L. 80-357, set out in note following 22 U.S.C. '287 passim Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951, entered into force for United States Feb. 23, 1989. 19,20 In re Henrique Galvao, U.N. Jr. Y.B. 164 6 Rules of Procedure and Evidence, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, U.N. Doc. IT/32 (1994), amended by U.N. Doc. IT/32/Rev. 1 (1994), U.N. Doc. IT/32/Rev. 2 (1994), U.N. Doc. IT/32/ Rev. 3 (1995) 17
Plaintiffs, victims of horrendous human rights abuses, brought this action for damages in the Southern District of New York against Radovan Karadzic, the man directly responsible for their suffering.
Plaintiffs' claims fall squarely within this Court's decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), which recognized federal subject matter jurisdiction over torts in violation of the law of nations as defined by modern international law. As the leader of a de facto regime, Raradzic is bound by international norms whether or not his regime is formally recognized. Further, the international prohibitions against genocide and war crimes apply to Karadzic regardless of whether he is called a state or a private actor.
District Court Judge Peter Leisure dismissed this case without the benefit of briefing on either of these issues, and without allowing Plaintiffs the opportunity to amend their Complaint or offer evidence to support jurisdiction. Judge Leisure's opinion creates a gaping hole in international law by holding that the leader of an unrecognized regime is not accountable for gross international law violations. Once recognized, however, that same leader is protected from liability by diplomatic or head-of-state immunity.
Karadzic makes little attempt to defend the district court's Catch-22. He focuses his challenge instead on personal jurisdiction, but makes not even passing reference to the controlling authority cited by Plaintiffs in their district court briefs. Karadzic was personally served while physically present in New York City; he came here voluntarily and intentionally. He clearly could have expected to be haled before a U.S. court while in this country. Moreover, Karadzic's claim to immunity from service has been rejected by both the legislative and executive branches of our government, as well as by the United Nations.
The District Court has personal jurisdiction over Karadzic and subject matter jurisdiction over Plaintiffs' claims. The decision of the District Court should be reversed and Karadzic's motion to dismiss should be denied.
Karadzic attempts to confuse an essentially simple principle of U.S. law: a court has personal jurisdiction over an individual who is personally served while physically present within the judicial district. See Pls.' Memo. at 20-27 {A103-1101. This principle has been repeated for centuries and was recently restated emphatically by the Supreme Court in 8urnham v. Superior Court of California, 495 U.S. 604 (1990), in which Justice Scalia declared, Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State.... We do not know of a single State or federal statute, or a single judicial decision resting upon State law, that has abandoned in- State service as a basis of jurisdiction.
495 U.S. at 610, 615. Having been personally served in New York, Karadzic is subject to the personal jurisdiction of the federal district court.
Under U.S. law, personal jurisdiction based on physical presence applies to all defendants. Karadzic cites not a single case to support his assertion that the rule somehow changes when applied to noncitizens visiting the United States. Even the weak authority on which Karadzic relies, a New York Law Journal article (Appellee's Br. at 15), contradicts Karadzic on this point: "In Burnham v. SuDerior Court of California. 495 U.S. 604 (1990), the Supreme Court held that physical presence alone is a sufficient basis upon which a court may exercise jurisdiction over a natural person." This reflects long-settled law in this Circuit:jurisdiction in Filartiga v. Pena-Irala, 630 F.2d 876, 879 (2d Cir. 1980), for example, was obtained by personal service on a noncitizen physically present in New York.
Karadzic's assertion that the court somehow lost jurisdiction over him because he did not maintain minimum contacts with the jurisdiction is groundless. As Justice Brennan's concurring opinion in Burnham made clear, individuals who voluntarily enter and are personally served within the jurisdiction per se have established minimum contacts sufficient to support jurisdiction. Burnham, 495 U.S. at 618, citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Here, there is simply no need to consider whether the defendant, an individual physically present in New York State, was "doing business" in New York--the statutory test applied to business organizations--to determine whether he was subject to the jurisdiction of the Court.
Karadzic repeats before this Court his totally unfounded claim to immunity from process while in the United States. The United States and United Nations have made clear that U.N. invitees such as Karadzic are not entitled to such immunity. See Pls.' Memo. at 27-39 (A110-122); Pls.' Sur-Reply at 4-7 {A269-272).
When inviting the United Nations to establish its headquarters in New York, the U.S. executive and legislative branches approved a detailed agreement governing the legal relationship between the U.N. and its host nation, known as the U.N. Headquarters Agreement. That Agreement represents the careful balance between the needs of the U.N. and U.S. sovereignty over its territory. The goal was not to grant the U.N., its headquarters and its delegates total immunity from U.S. law, but only as much immunity as was necessary to protect the integrity of core U.N. functions. Thus, a long line of cases interpreting the agreement have strongly cautioned against imposing limitations on the application of U.S.law beyond those specifically enumerated in the Agreement.
The Headquarters Agreement provides certain narrow limitations on service of process on those employed by or physically present at the United Nations. First, the consent of the U.N. Secretary General is required for service of process within the "Headquarters District" (Headquarters Agreement, ' 9(a)), a carefully defined area of approximately six square blocks. Second, immunity from suit is granted by treaty to a very limited set of U.N. employees: the designated principal resident representatives of member governments or of specialized U.N. agencies are completely immune from suit. Headquarters Agreement, '' 15 (1), (3). Third, immunity for other staff members is contingent upon specific agreement between the U.N. Secretary General, the U.S. government and the government of the individuals concerned. Id., '' 15(2), (4).Karadzic, however, falls outside each of these exceptions. First, he was served outside of the Headquarters District, at the hotel where he resided during his stay in the United States. The consent of the Secretary General thus was not required for service. Second, Xaradzic entered the United States not as a representative of a U.N. member or agency or even as a U.N. staff member, but as a U.N. Ainvitee " a category that is not afforded immunity of any kind under the Headquarters Agreement. In a legal opinion issued in 1963, In re Henricue Galvao, U.N. Jur. Y.B. 164, the United Nations legal counsel states unequivocally that status as a U.N. invitee carries with it no privilege of immunity whatsoever: The Headquarters Agreement does not confer any diplomatic status upon an individual invitee because of his status as such. He therefore cannot be said to be immune from suit or fecal process durina his so~ourn in the United States and outside of the Headauarters District.
Galveo, 1963 U.N. Jur. Y.B. at 164 (emphasis added). The conclusion that U.N. invitees are not immune from suit while in the United States is also reflected in the Restatement (Third) of Foreian Relations Law of the United States (1986), ' 439, n.8 [hereinafter Restatement (Third)]:[P]ersons invited by the United Nations to its Headquarters must be admitted to the United States and allowed access to the headquarters district . . . but they enjoy no privileges or immunities. An invitee is not immune from suit or fecal orocess outside the headauarters district during his sojourn in the United States . . . (emphasis added).
The law on this point could hardly be clearer.
Third, far from agreeing to grant Karadzic ad hoc immunity, the U.S. government concurs with the U.N. on this point. In a letter to Plaintiffs' counsel, responding to an inquiry sent to Secretary of State Warren Christopher, the U.S. State Department confirmed both that United Nations invitees in general and Karadzic in particular are not immune from service or suit:
Mr. Karadzic's status during his recent visits to the United States has been solely as an "invitee" of the United Nations, and as such he enjoys no immunity from the jurisdiction of the courts of the United States.
Letter of Michael J. Habib. Director, Office of Eastern European Affairs. U.S. Department of State, Ex. B to Affidavit of Beth Stephens {A141) (emphasis added).
Despite this clear law, Karadzic persists in arguing that the Headquarters Agreement "effectively removes the U.N. Headquarters and related areas from the Jurisdiction of the United States." Appellee's Br. at 18. In fact, the Headquarters Agreement states exactly the opposite: "Except as provided by this agreement or in the General Convention, the federal, state and local law of the United States shall apply within the Headquarters District." Headquarters Agreement at ' 7(b). It follows that an Agreement that only partially lifts U.S. jurisdiction within the Headquarters District in no way diminishes U.S. jurisdiction over areas outside of the Headquarters District.
Karadzic also points to ' 11 of the Headquarters Agreement, which bars "impediments to transit" such as the refusal to grant entry visas to U.N. invitees. Yet ' 11, which requires that the United States grant access to the U.N. to U.N. invitees, in no way implies that such invitees are immune from suit while in this country. To the contrary, other categories of persons associated with the United Nations have frequently been sued in the United States, without in any way "impeding" access to the U.N. or interfering with the functioning of that institution. Karadzic'sown conduct provides strong evidence that his amenability to service of process in no way impeded his transit or access to the United Nations: Karadzic returned to New York twice after he had been served in the instant case. Appellee's Br. at 2, 4, 5. Hundreds of people each year enter the United States on the same C-2 visa Karadzic received, including "representatives of the press or of radio, film or other information agencies" and representatives of non-governmental organizations. Headquarters Agreement, ' 11. A judicially created immunity for all of these visitors would fundamentally alter the scheme under which the United Nations operates in this country.
With supreme arrogance, Karadzic asks the U.S. courts to create an individualized immunity applicable to his class of one. However, Xaradzic is not writing on a blank slate. The United Nations and the United States long ago negotiated a precise delineation of the legal status of various participants in U.N. activities and declined to extend immunity to U.N. invitees. Both bodies have reaffirmed that position in subsequent years. Clearly, both the United Nations and the United States have concluded that non-immunity does ngt unduly burden the United Nations. Neither an individual litigant nor the federal courts are in a position to second-guess that policy conclusion. U.S. courts have no authority to fashion an individualized "grant" of immunity for Mr. Karadzic alone, nor any policy reason to attempt to do so.
Nor does the well-established rule that a non-resident suitor or witness is exempt from service of process and jurisdiction while attending court in an action to which he is a party or witness apply in any way to the present case, where Appellee entered the court's jurisdiction to attend meetings at the United Nations. The rule is designed not to immunize tortfeasors from suit, but rather as a rule of comity that allows a party or witness in one case to appear in another jurisdiction without fear of being served in an unrelated case. Moreover, "process immunity is not for the convenience of the person seeking it, 'but is for the convenienceof the court and should be made available only to further the administration of justice.=@ ARW Exploration Corp. v. Aquirre. 45 F.3d 1455. 1460 (lOth Cir. 1995), citing 4 Charles Wright and Arthur Miller, Federal Practice & Procedure ' 1076 at 500 (1987).
Here, neither the United Nations nor the United States have even requested that immunity attach. The rule is a specific one. It is not designed to serve diplomatic or political ends but purely judicial ones. Since Karadzic's attendance at the United Nations was not in furtherance of any judicial proceeding, it would be nonsensical for this court to exercise deference to such proceedings by denying jurisdiction on these grounds.
Both Karadzic and the District Court fundamentally err in assuming that this case turns on whether or not Karadzic is a recognized state actor. Both fail to acknowledge that de facto regimes are bound by the law of nations whether or not they are accorded official recognition, and that certain violations of international law, including war crimes and genocide, violate the law of nations even when committed by private individuals. The District Judge failed to follow Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the controlling Second Circuit precedent, and thus neglected to consider the applicable international law.
The Alien Tort Claims Act provides district courts with subject matter jurisdiction over civil actions brought by aliens alleging a "tort...in violation of the law of nations." 28 U.S.C. ' 1350. To determine whether subject matter jurisdiction exists over a particular claim, Filartiga mandates an analysis of whether that claim violates international law, as that law "has evolved and exists among the nations of the world today." Filartiga. 630 F.2d at 881. Relevant sources of international law include international agreements and declarations, judicial decisions, state law and practice, and the writings of international law experts. Id. at 880; see also Appellants' Br. at 14 n.15.
Modern standards of international law clarify what is prohibited as well as who is bound by a particular norm:
The evolving standards of international law govern who is within the [Alien Tort] statute's jurisdictional grant as clearly as they qovern what conduct creates jurisdiction.
Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 425 (2d Cir. 1987), rev'd on other grounds, 488 U.S. 428 (1989) (emphasis added); see Appellants= Br. at 15. Thus, while some law-of-nations violations may require state action, others are defined so as to apply to private actors as well. The District Court and Karadzic completely failed to engage in the international law analysis required by Filartiga. Despite a substantial body of law and authority to the contrary, they erroneously assumed that international law somehow exempts persons of Karadzic's position.
The District Court and Karadzic erroneously maintain that since Karadzic's regime is not officially recognized by the United States or the United Nations, his actions are not state actions, and thus he is not bound by the law of nations. Yet the political act of recognition is irrevelant to a court's determination of whether an individual is responsible for his violations of international law. For state action to violate international human rights law it is not necessary that the "state" be one which has received formal diplomatic recognition.
U.S. and international law recognize that certain actions of de facto regimes must be accorded the same legal status as those of a de jure state. The existence of a de facto regime is determined by applying clearly defined criteria:
Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.
Restatement (Third)' 201. see Appellant's Br. at 17-19 (citing U.S. cases applying criteria to determine state action). Karadzic's government clearly meets the U.S. and international law criteria of a de facto state: it controls territory, exercises control over the population living within its power, and enters into diplomatic negotiations with other governments. See Appellants' Br. at 18-19; Brief Amicus Curiae of Human Rights Watch in Support of Appellants at 12-15. By acknowledging the existence of a de facto regime a court does not legitimate its actions, but simply recognizes those actions, and those of its officials, as state action for which they may be held legally accountable. See Appellants' Br. at 18 (citing cases treating actions of unrecognized Confederacy as state action).
Defendant's claim that the dismissals in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1985) (Edwards, J., concurring), and Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), somehow control this case is mistaken. Appellee's Br. at 20, 24-25; see also Slip Op. at 13-15 (A290-292). Those cases stand only for the proposition that the specific violations alleged in those cases (torture and summary execution) required state action, and that the PLO and the "contras" were not such state actors. Judge Edwards specifically stated that as a matter of law, "it is conceivable that a state not recognized by the United States is a state as defined by international law and therefore bound by international law responsibilities." Tel-Oren, 726 F.2d at 791-92 n.21: see Appellants' Br. at 23. In deciding that the PLO did not meet those criteria, he noted that "there is no allegation here that the PLO does or could meet this standard." Tel-Oren at 791-92 n.21. This case, in contrast, presents a factual scenario that satisfies the international and U.S. law standards for de facto statehood. Unlike Karadzic's regime, neither the PLO nor the contras controlled territory, a component of statehood under international law, nor did they exercise control over civilian populations.
De facto regimes are liable for their actions whether or not they are legally recognized. See Appellants' Br. at 20-21. Whether other states withhold formal recognition from a de facto regime in no way strips that regime's actions of their status as "state action," where private rights are implicated. See Appellants' Br. at 20 (citing cases); see also Restatement tThird) ' 202, cmt. c ("The obligation not to treat an entity as a state...does not deprive states from recognizing the validity of some of that entity's actions affecting private rights").
The United States government has repeatedly acknowledged that unrecognized and illegal governments are bound by international law and can be held liable for violations of that law. For instance, the U.S. government harshly criticized the government of North Korea for violating international law when it attacked a U.S. vessel, even though our government did not recognize North Korea. The Pueblo, 58 Dep't State Bull. 196 (1968). Similarly, both the United States and the U.N. Security Council repeatedly criticized the de facto government of the unrecognized state of Rhodesia for violating the law of nations. Restatement (Third), ' 202 n.5. International human rights bodies also apply international law to judge the action of de facto regimes. See Appellants' Br. at 21. U.S. courts, like the political branches and international bodies, are fully competent to determine that a de facto regime exercises sufficient authority to render its actions state action. U.S. courts have historically made factual inquiries to determine whether actions of unrecognized governments should be considered state action. Appellants' Br. at 23-24 (citing cases). The U.S. executive branch has recognized that Karadzic himself bears responsibility under international law for war crimes, without regard to recognition, naming Karadzic as one of group of "individuals suspected of war crimes and crimes against humanity":
Leaders such as Slovodan Milosevic, the president of Serbia, Radovan Karadzic, the self-declared president of the Serbian Boanian Republic, and General Ratho Mladic, commander of the Bosnian Serb military forces, must eventually explain whether and how they sought to ensure, as they must under international law, that their forces complied with international law.
The State Department views all parties to the conflict in Bosnia- Herzegovina--recognized or not--to be bound by the rules governing international conflict. See Appellants' Br. at 44-45.
International bodies charged with enforcing international law also recognize that de facto states are bound by it. See Appellants' Br. at 20-21. Most recently, the International Tribunal formed by the U.N. Security Council to prosecute humani- tarian law violations in the former Yugoslavia defined "state" to include de facto regimes as well as recognized governments:
State: A State Member or non-Member of the United Nations or a self-proclaimed entity de facto exercising governmental functions, whether recognized as a State or not. In sum, there simply is no support in international or domestic law for the position that the leader of a de facto regime cannot be held liable for violations of international law such as those alleged in this case. The political decision to withhold recognition, which expresses disapproval for the governing regime, does not thereby free that regime from the constraints of international law. Such an erroneous holding would improperly immunize the most egregious human rights violators from inter- national law, shielding them from liability until they were officially recognized--at which point they would claim protection by diplomatic, sovereign and head-of-state immunity. This court should not leave undisturbed a ruling that perversely transforms the U.S. government's withholding of a benefit--formal recognition --from Karadzic into a grant of judicial immunity for his international crimes. The civil liability of Adolf Hitler, Pol Pot and Radovan Karadzic does not depend on such political labels.
In any event, Plaintiffs' alleged that Karadzic acted with the support of the Yugoslav government and army. This allegation is sufficient to support the claim that he acted under color of law of that state. See Appellants' Br. at 24-27. Karadzic implicitly concedes that he would be bound by international law if acting under the color of law of the "rump Yugoslavia.@ Appellee's Br. at 25-26. Nor is there any question that international torts committed under color of law of Yugoslavia would satisfy even Judge Leisure's constricted reading of the state action requirement.
Karadzic also implicitly recognizes that if the Complaint's allegations of Yugoslav involvement are considered inadequate, Plaintiffs should be offered the opportunity to amend the Complaint. Appellee's Br. at 26. He makes, however, the unfounded and premature claim that Plaintiffs' allegations would be impossible to prove. Plaintiffs are fully prepared to prove that Karadzic acted under color of the law of Yugoslavia. The adequacy of such proof must be determined with full briefing at the appropriate time, not on a pre-trial motion to dismiss.
Karadzic makes no attempt to defend the District Court's failure to discuss Plaintiffs' claims for genocide and war crimes; indeed, he follows the lower court in failing to even discuss those causes of action and the applicable international law. Relying solely on cases concerning allegations of torture, Raradzic and the District Court conclude that all acts, no matter how heinous, "committed by non-state actor. do not violate the law of nations." Slip Op. at 12 {A289); Appellee's Br. at 26. As discussed in Appellants' Br. (at 27-47), both genocide and war crimes are specifically defined by international law as binding private, as well as state, actors. The Genocide Convention provides:
[p]ersons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Genocide Convention, art. 4 (emphasis added). The U.S. Congress recognized the significance of this language, incorporating it in full into the Genocide Convention Implementation Act of 1987, 18 U.S.C. ' 1091 (1988). The legislative history of the Act explains:
Article IV reguires the parties to punish a leader of a government, a person who serves the government or private individual unconnected with any government. The only exception to the rule laid down in Article IV is a limited one that applies to heads of state of constitutional monarchies. . . . No defense based on status is availabl, to any other individual by the terms of the Convention.
The law could not be clearer: the international law prohibition against genocide applies to private individuals, without any requirement of a showing of state action.
Similarly, international norms defining war crimes explicitly refer to insurgent groups unconnected to recognized governments. See Appellants' Br. at 36-47. The Eleveth Circuit recognized this in reversing the lower court decision in Linder v. Portocarrero, 963 F.2d 332 (llth Cir. 1992), finding that the contras were governed by the law of nations with respect to the conduct of warfare, even a claimed civil war:
Contrary to the district court's conclusion, there is no foreign civil war exception to the right to sue for tortious conduct that violates the fundamental norms of the customary laws of war." Id. at 336 (emphasis added). Linder's holding that the leaders of an insurgent group without the attributes of de facto statehood can be held liable for committing a tort in violation of the law of nations, clearly demonstrates that Karadzic, the leader of a de facto state, can be held liable as well.
The issue of subject matter jurisdiction decided by the court below involves straightforward interpretation of the reach of three U.S. statutes: 28 U.S.C. '' 1331 and 1350 and the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992). Statutory interpretation in per se a legal, not a political, question:
[I]t goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts.... [U]nder the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.
Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 (1986).
Without mentioning this controllina Supreme Court case, and with almost no analysis, Karadzic asserts that the case should be dismissed under the oolitical question doctrine, an issue which he raised but failed to brief before the District Court. Yet, as this Circuit has noted, [T]he doctrine "is one of 'political' questions,' not one of 'political cases."' Baker v. Carr, 369 U.S. 186, 217.The fact that the issues before us arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question.
Klinahoffer v. S.N.C. Achille Lauro, supra, 937F.2d at 49. The issue of subject matter jurisdiction decided by the court below involves straightforward interpretation of the reach of three U.S. statutes: 28 U.S.C. '' 1331 and 1350 and the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992). Statutory interpretation in per se a legal, not a political, question:
[I]t goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts.... [U]nder the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.
Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230 (1986).
Without mentioning this controllina Supreme Court case, and with almost no analysis, Karadzic asserts that the case should be dismissed under the oolitical question doctrine, an issue which he raised but failed to brief before the District Court. Yet, as this Circuit has noted, [T]he doctrine "is one of 'political' questions,' not one of 'political cases."' Baker v. Carr, 369 U.S. 186, 217.The fact that the issues before us arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question.
Klinahoffer v. S.N.C. Achille Lauro, supra, 937F.2d at 49.
The legislative and executLve branches long ago instructed the judiciary to resolve cases such as that currently before the Court: over 200 years ago, the ATCA vested jurisdiction over suits alleging torts in violation of the law of nations in the federal courts. Just two years ago, a modern Congress reaffirmed and expanded that jurisdictional grant with the passage of the TVPA. By enacting these statutes, Congress expressly delegated to the judiciary exactly the task raised by this case: to determine whether an individual acting under color of law of a foreign nation is civilly liable for certain gross human rights violations. A judicial refusal to hear this case would violate judicial duty and render the ATCA and the TVPA meaningless, for by definition any case brought against an agent of a foreign government will touch upon foreign policy.
Since Filartiga, the federal courts have regularly applied the statutory scheme on behalf of individual victims of human rights violations committed under color of law of their own governments. See Appellants' Br. at 11 n.11, listing cases. Not one court has refused to act on the basis of the political question doctrine.
Nor has Supreme Court dicta suggested that the political question doctrine should apply here. The crux of the political question doctrine is Hrespect by the courts for the constitutional authority of the President and Congress....@ Lamont v. Woods, 984
F.2d 825, 831 n.3 (2d Cir. 1991). Here, that authority is not at issue. Plaintiffs charge Karadzic with responsibility for qross human rights abuses committed against them; they challenge no actions of the U.S. government.
Not only does this case fall within Japan Whaling's mandate concerning statutory construction, but none of the six prudential factors set forth in Baker v. Carr, 369 U.S. 186, 217 (1962), apply to this case. As already noted, this case involves issues of statutory construction which are committed to the courts, not textually committed to the Executive Branch, or any coordinate political department. Standards for resolution of the case are readily available through interpretation of the governing statutes.The legal issues are no different nor more complicated than those raised by Filartiga or any of its progeny. Evidence about the key legal issues is abundant, much of it a matter of public record. foreign nation is liable for international law violations. The policy at issue is one with which no branch of our government disagrees: genocide, war crimes, crimes against humanity, torture and summary execution are wrongs for which those guilty should be held responsible.
On a motion to dismiss for lack of subject matter jurisdiction, uncontroverted factual allegations must be taken as true. Robinson v. Overseas Military Sales Coru., 21 F.3d 502, 507 (2d Cir. 1994). Here, the bulk of Plaintiffs' jurisdictional allegations are uncontroverted. Karadzic does not challenge the Plaintiffs' claims that they suffered gross human rights abuses at the hands of forces under his command, or that he is the leader of a regime which satisfies the criteria of a de facto government. All of these allegations, therefore, must be taken as true for the purposes of aubject matter jurisdiction.
The only allegation which Karadzic appears to question is the assertion that he acted under color of law of the government of Yugoslavia. Appellee's Br. at 30-31. Karadzic argues both that Plaintiffs have the burden of proving the facts necessary to support this claim--but that they should not be offered any opportunity to do so. Id~ He cannot have it both ways. Either the allegations of the complaint are taken to be true or they must be proven--in which case Plaintiffs must be given the opportunity to take discovery and present evidence to support their allegations. Robinson, supra, 21 F.3d at 507. Further, where, as here, jurisdictional facts are intertwined with the merits of the claim, the court should assume jurisdiction and postpone a final resolution until it reaches the merits. 2A Jeremy Moore et al.,Moore's Federal Practice & 12-54 (2d ed. 1987).
For all of the above reasons, the District Court decision should be reversed. Karadzic's motion to dismiss should be denied.
April 3, 1995 Respectully submitted, RHONDA COPELON BETH STEPHENS CELINA ROMANY MATTHEW J. CHACHERE INTERNATIONAL WOMEN'S HUMAN JENNIFER GREEN RIGHTS CLINIC PETER WEISS CUNY LAW SCHOOL MICHAEL RATNER 65-21 Main Street JULES LOBEL Flushing, NY 11367 CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor HAROLD HONGJU KOH New York, NY 10012 RONALD SLYE 212-614-6464 ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS JUDITH LEVIN LAW PROJECT INTERNATIONAL LEAGUE FOR HUMAN 127 Wall Street RIGHTS New Haven, CT 06520 432 Park Avenue South New York, NY 10016 Attorneys for Plaintiffs-Appellants On the Brief: CHARLOTTE BURROWS LINDA KELLER DANIYAL MUEENUDDIN WENDY WEISER SWATI AGRAWAL BRUCE BROWN CARL GOLDFARB JON LEVITSKY STEVE PARKER MAXWELL S. PELTZ AMY VALLEY Allard K. Lowenstein International Human Rights Clinic 127 Wall Street New Haven, CT 06520 203-432-4932 DEENA HURWITZ Northeastern University School of Law 400 Huntington Avenue Boston, MA 02115
I hereby certify that service of two copies of Appellants' Reply Brief was made this 3rd day of April, 1995, by first-class mail to defendant's counsel at the following address:
Lawrence W. Schilling
Law Offices
36 East 12th Street
New York, NY 10003
Beth Stephens
1. Karadzic's reticence is not surprising, since the District Court dismissed the case under a theory which was neither asserted nor briefed by Karadzic, and which ignores controlling precedent.
2. Plaintiffs' Memorandum in Opposition to Motion to Dismiss [hereinafter Pls.' Memo.] and Plaintiffs' Sur-Reply Brief in Opposition to Defendant's Motion to Dismiss [hereinafter Pls.' Sur-Reply] are reproduced in the Joint Appendix filed with Appellants' Br. at A72 and A264. References to the Joint Appendix will be cited hereinafter as {A[page number]).
3. Karadzic was properly served under New York law by process servers who proffered the Summons and Complaint to him and stated that he was being served with legal process. See District Court Slip Opinion at 4-6 (A281-283) [hereinafter Slip. Op.]; see Pls.' Memo. at 17-19 (A100-1021; Pls.' Sur-Reply at 1-4 {A266-269); Appellants' Br. at 58.
4. L. Newman & M. Burrows, Tag Jurisdiction, N.Y.L.J, April 15, 1993, p. 3, colt 1. The article goes on to acknowledge that under Burnham, jurisdiction attaches whether or not the individual is a citizen of the United States or a resident, and whether or not the cause of action arose in the United States.
5. 0f course, Karadzic established far more than minimal contacts by engaging in a wide range of non-U.N. related activities in New York, including parties, fundraisers and press interviews. See Pls.' Memo. at 20 n.l9 {A103), 24 n.24 (A107~; Pls.' Sur-Reply at 6-7 {A271-272}; Excerpts from State Department Security Detail Logs, Ex. B to Decl. of Beth Stephens {A256-263).
6. Burnham noted that jurisdiction based on physical presence comports with due process because it is one of the continuing traditions of our legal system that define the due process standard of "traditional notions of fair play and substantial justice." That standard was developed by analogy to "physical presence," and it would be perverse to say that it could now be turned against that touchstone of jurisdiction. Burnham, 495 U.S. at 619. In attempting to rely on Klinahoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991), to distinguish Burnham, defendant thus confuses jurisdiction over an individual based upon physical presence with the complex factors that deter- mine whether an orqanization is "physically present" within the jurisdiction. See discussion in Pls.' Memo. at 22-24 (A105-1071.
7. Agreement Between the United States and the United Nations Regarding the Headquarters of the United Nations [hereinafter Headquarters Agreement], G.A. Res. 169 III), 11 U.N.T.S. 11, No. 147 (1947), 61 Stat. 756, T.I.A.S. No. 1676, authorized by S.J. Res. 144, 80th Congress., 1st Sess., Pub. L. 80-357, set out in note following 22 U.S.C. ' 287.
8. This Circuit, for example, has held that the immunity provisions of the Headquarters Agreement must be read narrowly: "We see no reason to extend the immunities provided by the Headquarters Agreement beyond those explicitly stated." Klinghoffer, supra, 937 F.2d at 48. See also U.S. v. Fitzpatrick. 214 F. Supp. 425 (S.D.N.Y. 1963); Paonas v. Francisci, 119 N.Y.S.2d 69 (1953); People v. Doe, 101 Misc. 2d 789, 421 N.Y.S.2d 1015 (Justice Ct., 1979); People v. Leo, 103 Misc. 2d 320, 425 N.Y.S.2d 709 (1979); Rhee v. Dahan, 116 Misc. 2d 548, 457 N.Y.S.2d 684 (1982); see Pls.' Memo. at 32-36 (A115-A119).
9. Annex 1 to the Headquarters Agreement defines the Headquarters District as: the premises bounded on the East by the westerly side of Franklin D. Roosevelt Drive, on the West by the easterly side of First Avenue, on the North by the southerly side of East Forty-eighth Street, and on the South by the northerly side of East Forty-second Street . . . in the Borough of Manhattan. .
10. Karadzic was served with the summons and complaint in the lobby of the Hotel Intercontinental, at 111 East 48th Street, between Park and Lexington Avenues, well outside of the boundaries of Headquarters District. See Return of Service {A25}; Affidavits of Jonathan Soroko {A28) and John Schuler {A31}.
11. The U.S. granted Karadzic a C-2 visa, which is reserved for visitors in transit to the U.N. and distinct from the visas for diplomats and the officials or staff of the U.N. and its agencies. See Pls.' Memo. at 35, nn. 38, 39; Appellee's Br. at 3.
12. Thus, Karadzic's statement that "[s]ervice cannot tag a person who is not there" (Appellee's Br. at 18) is a non sequitur; U.S. law recognizes no fiction by which visitors to the U.N. enter the U.S. without thereby becoming subject to our law.
13. Cf. W. Michael Reisman, The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion. 83 Am. J. Int'1 L. 519, 520-22 (1989).
14. U.S. courts have often found personal jurisdiction over persons attached to the U.N., regardless of whether they held diplomatic passports and visas. See Pls.' Memo. at 35-36 (A118- 119}; U.S. v. Fitzpatrick. 214 F. Supp. 425, 439-40 (S.D.N.Y. 1963) (member of Cuba's U.N. Mission, with diplomatic passport and visa,denied immunity because State Department had not yet acted upon his formal request for diplomatic status); Foxworth v. Permanent Mission of the Republic of Uaanda to the United Nations, 796 F. Supp. 761, 764 (S.D.N.Y. 1992); U.S. v. Ecorov, 222 F. Supp. 106 (E.D.N.Y. 1963); U.S. v. Coplon, 84 F. Supp. 472 (S.D.N.Y. 1949).
15. By contrast, the two Second Circuit cases relied on by Karadzic both involved the ability of an organization, the PLO, to maintain a Mission at the U.N. Neither concerned jurisdiction over individual defendants. U.S. v. PLO, 695 F. Supp. 1456 (S.D.N.Y. 1988), concerned the PLO's right to maintain an observer mission to the U.N., a right clearly created by the Headquarters Agreement. The PLO did not claim that it or its employees were entitled to immunity, and the court found, "We have no difficulty in concluding that the court has personal jurisdiction over the PLO and the individual defendants.@ Id. at 1461.
In Klinghoffer v. S.N. C. Achille Lauro. 937 F. 2d 44 (2d Cir. 1991), 795 F. Supp. 112 (S.D.N.Y. 1992) (on remand) the court employed a minimum contacts analysis with respect to the PLO, and ultimately found that the PLO's non-U.N. contacts-were sufficient to support jurisdiction. Here Raradzic's physical presence at the time of service satisfies the minimum contacts analysis. Id at 50.
16. The C-2 transit visa grants admission to the United States to "aliens in transit to the United Nations" who fall within the provisions of ' 11 of the Headquarters Agreement. The State Department issued 223 C-2 visas from Oct. 1992-Sept. 1992, the last period for which statistics are available. Bureau of Consular Affairs, Dep't of State, Report of Visa Office: 1993 112 (1994).
17. Where much of the world saw Karadzic's 1993 U.N. visits as those of a warmonger buying time for yet more death and destruction (Pls.' Memo. at 1 {A84}), Karadzic has tried to present himself as on a mission "to eliminate the scourge of war." (Deft.'s Reply Memorandum in Support of His Motion to Dismiss, at 4 {A210}). This difference of opinion highlights the need for this Court to avoid upsetting--for one case only--the delicate balance between immunity and legal actions struck by the United Nations and our government when they neqotiated the U.N. Headquarters Agreement.
18. "The privilege which is asserted here is the privilege of the court rather than of the defendant." Lamb v. Schmitt, 285 U.S. 222. 225 (1932) (citation omitted).
19. Nor is it clear that service would not have been allowed even under the rule applying to attendance at judicial proceedings. Karadzic would have lost any such immunity when he engaged in nonprotected out-of-court activity such as press interviews, parties and fundraisers. See, e.g, Uniroyal. Inc. v. Sperberg, 63 F.R.D. 55, 58 (S.D.N.Y. 1973). See infra n. 5. Further, the immunity does not apply if the service relates to in-state activities of the defendant. 4 Wright & Miller, Federal Practice and Procedure. Civil, ' 1080 (1969). Here, Karadzic was served with process in a case arising out of the war in Bosnia-Herzegovina, a cause of action directly related to his activities in New York.
20. In order to fall within the reach of the ATCA, the international violations at issue must also be "well-established, universally recognized norms of international law.. Id. at 888. See also Forti v. Suarez-Mason, 672 F. Supp. 1531, 1544 (N.D.Cal. 1987) (ATCA covers international torts that are "universal, definable, and obligatory"). Genocide, war crimes and crimes against humanity, summary execution and torture all meet this standard. See Appellants' Br. at 14-15, 31-47.
21. In reversing the Second Circuit decision on other grounds, the Supreme Court noted, "The Alien Tort Statute by its terms does not distinguish among classes of defendants. AArgentine Republic v. Amerada Hess Shipping Corp., supra, 488 U.S. at 438. See Appellants' Br. at 15 n.17.
22. As discussed in Part C, infra, some violations of international law--such as genocide and war crimes--are not contingent upon state action at all. Further, Karadzic can be found to be a state actor if he acted under the color of law of Yuqoslavia, as discussed in Part B, infra.
23. Neither case addressed causes of action that do not require state action, such as genocide and war crimes. See infra part C.
24. See also State Department, Country Reports (1993) (criticizing human rights violations of unrecognized regimes and factions, such as the Sendero Luminoso in Peru, the military qovernment of Haiti, the Kurdish insurgents in Turkey, etc.).
25. 3 U.S. Deptt of State Dispatch 52 (Dec. 28, 1992) (Statement at international conference on the former Yugoslavia, Geneva, Switzerland, December 16, 1992) (emphasis added).
26. See, e.g., Letter from Robert A. Bradtke, Acting Asst. Sec. for Legislative Affairs, to Sen. Arlen Specter (Jan. 27, 1993) ("Under the Geneva Conventions and customary international law, all parties to an international conflict (including all parties to the conflict in the former Yugoslavia) are required either to try persons alleged to have committed grave breaches or to extradite them to a party that will"), cited in Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 Am.J.Int'1 L. 424, 427 n. 22 (1993).
27. Rules of Procedure and Evidence, International Tribunal for the Prosecution of Persons Responsible for Serious V4olations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, U.N. Doc. IT/32 (1994), amended bv U.N. Doc. IT/32/Rev. 1 (1994), U.N. Doc. IT/32/Rev. 2 (1994), U.N. Doc. IT/32/Rev. 3 (1995) (emphasis added).
28. A Southern District Court judge recently found that environmental torts committed by non-state actors fall within the jurisdictional reach of the ATCA. Aguinda v. Texaco, Inc., 1994 U.S. Dist. LEXIS 4718. Karadzic woefully misreads this case, which not only found, as a matter of law, that the ATCA "is applicable to private as well as governmental actors," but ordered the private corporation defendant to submit to discovery as to the underlying facts. See Appellants' Br. at 30; Appellee's Br. at 23.
29. Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951, entered into force for United States Feb. 23, 1989.
30. Along with slave trading and piracy, the prohibition against genocide is one of the international law norms which explicitly, by definition, bind private actors as well as those acting under color of law. See Appellants' Br. at 27-31.
31. Committee on Foreign Relations, Report on the International Convention on the Prevention and Punishment of the Crime of Genocide, Exec. Rept. 99-2, 99th Cong. 1st Sess. at 5 (1985), 28 I.L.M. 754, 765 (1989) (emphasis added).
32. Karadzic persists in defending the District Court's citation to the lower court decision in the Linder case, arguing that the Eleventh Circuit reversal did not concern the applicability of international law. Appellee's Br. at 22-23. He is wrong on the issue which is central to this case: the Eleventh Circuit clearly stated that the tort for which the Linder plaintiffs could sue the contra leaders--state actors or not--was a tort defined by the international laws of war. Linder, supra, 963 F.2d at 336.
33. Plaintiffs araued in the District Court that Karadzic's claim of non-justiciability as a basis for dismissal should be stricken inasmuch as he failed to brief the issue. See U.S. v, Palestine Liberation Oroanization, 695 F. Supp. 1456, 1471 (S.D.N.Y. 1988) (motion to dismiss, which was not briefed, denied)
34. “[P]rior to t the 1992] Term, the [Supreme] Court had held only one case nonjusticiable on political question grounds since Baker." The Supreme Court, 1992 Term, Leading Cases, Federal Jurisdiction & Procedure: Political Question Doctrine--Senate Control Over Impeachment Trial Procedures, 107 Harv. L. Rev. 254, 293 (1993). That case, Nixon v. United States, 113 S.Ct. 732 (1993), involved congressional authority to determine impeachment procedures, not human rights violations or foreign affairs.
35. The Baker factors were recently restated by the Second Circuit as follows involving: . . . a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Can v. U.S., 14 F.3d 160, 163 (2d Cir. 1994).
36. See, e.g., Complaint, && 15-25 (A13-15}; Pls.' Memo. at 4-16 {A87-99); Brief Amicus Curiae by International Human Rights Law Group in Support of Plaintiffs' Opposition to Motion to Dismiss (A162-167); Brief Amicus Curiae by Human Rights Watch in Support of Plaintiffs' Opposition to Motion to Dismiss {A184-186).
37. Karadzic alleges that this case would have "the Courts address claims arising from an ongoing, urgent situation." Appellee's Br. at 32. Yet the same was equally true of the Iranian hostages case, the Steel Seizure cases, the Nixon tapes and the Pentagon Papers, all of which were adjudicated, not dismissed as political questions. While the urgency of the situation is undisputed, the facts necessary to prove Plaintiffs' case arise from incidents no more recent than two years ago. Moreover, these facts, as well as the details of Karadzic's status, already public, are non-controversial with respect to any aspect of U.S. foreign policy. See Appellants' Br. at 16-24 and 24-27.