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94-9035
94-9069
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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.   )

_________________________________)

PRELIMINARY STATEMENT

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

Preliminary Statement  1

  I. The Alien Tort Statute Applies Only To Damages In Prize Cases  2

  II. State Action Is An Element Of These Claims Under The Law Of Nations And The Alien Tort Statute  4

  III. The Remand To Determine Whether The Criteria For A   State Is Satisfied For Purposes Of State Action Was Error  9

  IV. Denial Of Immunity Conflicts With Circuit And Other Precedents  10

  V.  This Case Is Nonjusticiable  13

  VI. Unsupported Statements In The Court's Opinion On Forum Non Conveniens Should Be Stricken  14

Conclusion  15

Table of Authorities

Cases page

Baker v. Carr,

369 U.S. 186 (l962) 13

Chase National Bank v. Turner

269 N.Y. 397 (1936) 12

Durst v. Tautges, Wilder  McDonald,

44 F.2d 507 (7th Cir. 1930)  12

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980)  5, 6, 9

Filer v. McCormick,

260 Fed. 309 (N.D.Calif. l919) 12

Hamid v. Price Waterhouse,

51 F.3d 1411 (9th Cir. 1995) 5

ITT V. Vencap. Ltd.,

519 F.2d 1001 (2d Cir. 1975)  2

Klinghoffer v. S.N.C. Achille Lauro,

937 F.2d 44, 47 (2d Cir. 1991)  10, 11, 12

Naartex Consulting Corp. V. Watt,

722 F.2d 779 (D.C.Cir. 1983),

cert. denied, 467 U.S. 1210 (1984) 11

NCAA v. Tarkanian,

488 U.S. 179 (l988)  8

Nicols v. G.D. Searle  Co.,

783 F.Supp. 233 (D.Md. 1992)  11

Pavlo v. James,

437 F.Supp. 125 (S.D.N.Y. 1977)  12

Sanchez-Espinosa v. Reagan,

770 F.2d 202 (D.C. Cir. 1985) 5

Shapiro  Son Curtain Corp. v. Glass,

348 F.2d 460 (2d Cir.),

cert denied, 382 U.S. 942 (1965)  12

Table of Authorities

Cases page

Stewart v. Ramsay,

242 U.S. 128 (1916) 12

Sullivan v. Tagliabue,

785 F.Supp 1076 (D.R.I. 1992) 11

The Paquete Habana,

175 U.S. 677, 20 S.Ct. 290,

44 L.Ed. 320 (1900) 5

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C.Cir. 1988)  5, 10, 13

Thermoid Company v. Fabel,

4 N.Y. 2d 494 (1958) 12

U.S. v. PLO,

695 F.Supp. 1456 (S.D.N.Y. 1988) 11

Verlinder B.V. v. Central Bank of Nigeria

461 U.S. 481 (1962) 13

Youpe v. Strasser,

113 F.Supp. 289 (D.D.C. 1953),

appeal dismissed sub nom. Youpe v. Moses,

213 F.2d 613 (D.C.Cir. 1954) 12

Constitution

10th Amendment  7

Rules

FRAP 35 1

FRAP 40 1

Statutes

Alien Tort Statute passim

Genocide Convention,

18 U.S.C.  l09l-l092 (1988) 8

Torture Convention,

18 U.S.C.   2340-2340(B)(1994) 8

Torture Victims Protection Act 8

42 V.S.C.  1983 7, 8

Table of Authorities

Other Authorities  page

Recent Developments, The Legal Services Act of the Republic of

Croatia -- A Guarantee of the Advocate's Independence and

Autonomy, Cizinic, Jozo,

29 The International Lawyer 209 (Spring 1995) 14

A Tort Only In Violation of the Law of Nations,

Sweeney, Joseph Modeste, 18 Hastings Int't 

Comparative L. Rev. 445 (Spring 1995)  14

The Feigned Demise of Prize, Bederman, David J.,

9 Emory Int'l L.Rev. 31, 53-64 (Spring 1995) 4

U.S. Tort Suits by Alien Based on International Law,

Rubin, Alfred P.,

18 Fletcher Forum of World Aff. 65, 69 (No. 2)(1994) 4

Appellee respectfully petitions for a rehearing of the decision herein filed on Friday, October 13, 1995, pursuant to FRAP 40, on the ground that the decision overlooks and misapprehends the points of law and fact stated with particularity below and suggests rehearing in banc of the decision pursuant to FRAP 35 because consideration by the full Court is necessary to secure and maintain uniformity of its decisions and because this appeal involves questions of exceptional national and international importance.

Preliminary Statement

The decision of the Court is unprecedented in many of its holdings and is in direct conflict with prior deciaions of this and other circuits and with statutes and treaties of the United States.

In its first sentence the Court observes "Most Americans would probably be surprised to learn that victims of atrocities committed in Bosnia are suing the leader of the insurgent Boanian-Serb forces in a United States District Court in Manhattan."

Americans, including jurists and lawyers as well as foreigners travelling to the U.S., would be amazed if they knew that no contact with the United States is required for there to be "federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations."

Here, (1) all the parties are aliens living in Bosnia, or nearby, (2) all the events occurred in Bosnia, (3) there is no presence, or property of any nature of any party in the U.S., (4) plaintiff classes allegedly involve many thousands of Bosnians, unnamed and unknown, few if any of whom will ever visit the United States, (5) the injuries alleged occurred in a widespread brutal armed conflict that is the single greatest concern and responsibility of all the people, governments and factions in Bosnia and Croatia, (6) there was no effort to sue in Bosnia, or Croatia, or elsewhere in former Yugoslavia where courts have proceeded on both criminal and civil cases arising from the conflict, (7) the only nexus to the U-S. is the brief presence of appellee in New York to attend peace negotiations at the U.N. at its urgent invitation.

There is no precedent in which a U.S. court has asserted Jurisdiction in a case with so little contact with the United States. Consider only the millions of victims of factions engaged in wars in Angola, Rwanda, Liberia, Guatemala, El Salvador, Cambodia, Kashmir and all the other countries torn by conflict at the end of this most violent century of mankind. Can U.S. courts be the bully pulpit, or the tort claims forum for all the world's misery if only some defendant can be tagged with one foot on U.S. soil or reached by service overseas? Can damages assessed in materialistic America involving chance parties, but never governments, who know nothing of its values possibly protect human rights? No benefit can result from such a vast and interventionist claim of jurisdiction over people and events worldwide, only increased emotional conflict that can only be resolved among the parties, defeated expectations and burdened U.S. courts.

I The Alien Tort Statue Applies only To Damages In Prize Cases

The genealogy of "[t]his old and little used section... a kind of a legal Lohengrin... no one seems to know whence it came," Friendly, C.J., ITT v. Vencap. Ltd., 5l9 F.2d 1001, 1015 (2d Cir. 1975), has been discovered finally by the exhaustive research of a prominent international law scholar. The startling conclusion is that every word in the Alien Tort Statute, including "only," counted and Congress clearly intended to cover "only" prize cases. See, Joseph Modeste Sweeney, A Tort Only In Violation of the Law of Nations, 18 Hastings Int'l Comparative L. Rev. 445 (Spring l995). Delightfully the hand that wrote the cryptic phrase " . . . for a tort only, committed in violation of the law of nations or a treaty of the United States," was Oliver Ellsworth, id. at 448.

As litigation usually does, the Alien Tort Statute addressed a felt necessity of the moment. Its words were clearly understood to address that recognized problem, not to regulate the universe in perpetuity. The words "tort only" as used in the statute referred to wrongs under the law of prize. Id. at 451. The draftsmen wanted the federal courts including the Supreme Court to sit as prize courts to adjudicate these internationally frictive cases, see e.g., id. at 483. The draft of section 9 of the Judiciary Act contained a clause giving federal district courts exclusive original jurisdiction over all civil causes of admiralty. This would have deprived state courts of jurisdiction of any prize case even if the case was brought "only" for damages from a wrong related to capture. State courts had asserted such jurisdiction and the issue was politically charged at a time when federalism was finding its way. The provision that eventually became the Alien Tort Statute was inserted in Section 9 to recognize a concurrent jurisdiction in state courts in cases where "the legality of a capture was not in issue, and the suit was `only' for the reparation in damages for a wrong related to a capture." Id. at 482-83.

As Professor Sweeney shows, there is no basis in the Alien Tort statute for expanding its reach beyond its strict limitation to wrongs prohibited by the law of prize including treaties of the United States dealing with prize matters. To stretch the scope of the act to transitory tort actions arising from violations of the law of nations, or treaties of the United States is beyond the wildest dreams of the Congress. Neither subsequent congressional act nor the handful of cases brought under the Alien Tort Statute over 200 years has created a basis for expanding its original application. See also, David J. Bederman, The Feigned Demise of Prize, 9 Emory Int'l L.Rev. 31, 53-64 (Spring 1995); Alfred P. Rubin, U.S. Tort Suits by Aliens Based on International Law, 18 Fletcher Forum of World Aff. 65, 69 (No.2)(1994).

II State Action Is An Element Of These Claims Under The Law Of Nations And The Alien Tort Statute

The Court has failed to understand the essential requirement of the element of state action in the law of nations. While conceding "The law of nations generally does not create private causes of action to remedy violations," the Court proceeds to find without precedent, that international law now provides private remedies against private non state conduct as vast in scope as genocide, war crimes and other instances of inflicting death, torture and degrading treatment. The decision is in direct conflict with judicial precedent, consistently expressed congressional intent, applicable treaties and the very nature and purposes of international law. No other nation seeks to exercise such global Jurisdiction. Should Americans traveling in Paris, Mexico city, Moscow, Istanbul, Tripoli, or Tokyo be suable for torts allegedly committed in Vietnam, Grenada, Guatemala, El Salvador, Panama, Iraq, Somalia, Haiti, or Okinawa?

The decision conflicts with Sanabez-Espinosa v. Reagan, 770 F.2d 202 at 206-7 (D.C.Cir. 1985), written by Judge Scalia, now Justice Scalia, joined by Judge Ginsberg, now Justice Ginsberg:

We are aware of no treaty that purports to make the activities at issue here unlawful when conducted by private individuals. As for the law of nations -- so called "customary international law," arising from "the customs and usages of civilized nations," The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (l900) -- we conclude that this also does not reach private, non-state conduct of this sort for the reasons stated by Judge Edwards in Tel-Oren v. Libyan Arab Republic, 726 F.2d at 791-96 (Edwards J., concurring); see also id. at 807 (Bork, J., concurring).

See, Tel-Oren v. Libyan Arab Republic 726 F.2d 774 (D.C.Cir.1988):

The question therefore arises whether to stretch Filartiga's reasoning to incorporate torture perpetrated by a party other than a recognized state or one of its officials acting under color of state law The extension would require this court to venture out of the comfortable realm of established international law -- in which Filartiga firmly sat -- in which States are the actors. 726 F.2d at 792.

See also, Hamid v. Price Waterhouse, 51 F.3d 1411, 1417-18 (9th Cir. 1995), discussing but not reaching the issue whether the law of nations applies to private, as opposed to government conduct.

The decision is in conflict with Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980): "official torture is now prohibited by the law of nations." 630 F.2d at 885. There is no basis in precedent for setting aside Filartiga's requirement of state action in such claims under the law of nations. The court's explanation is, "We had no occasion to consider whether international law violations other than torture are actionable against private individuals, and nothing in Filartiga purports to preclude such a result." Opinion, p. 15. This ignores the fact that state action was recognized in Filartiga as an essential element in international law and not "only" as to torture. Weight must be given to that recognition and in the absence of a "well established, universally recognized" exception, it must be followed. No such exception exists for the conduct alleged by appellants.

Reliance on international law related to piracy, slave trade, attacks on and highjacking of aircraft, attacks on ambassadors and other officials is misplaced. These are acts against all humanity because they are not domestic offenses, or they directly involve more than one nation. They address international commerce and protection of officials. Piracy on the high seas, unlike piracy on Lake Placid, is a concern of all nations because it cannot be controlled by the laws of any one nation. The same is true of international slave trade, attacks on international air traffic and protection of diplomats. The interests and functions of every nation are threatened by such conduct which may be directly against its officials, ships, aircraft, or citizens and which it cannot control alone where multiple sovereignties, or international space are involved.

Conduct within a state and among its population involves entirely different considerations analogous to federalism. For conduct within a sovereignty, international law addressee nations, or persons acting under color of their authority. It does not intervene in domestic matters which are reserved to the state, unless state conduct violates international norms. The assumption is that the state will act to protect its own people from domestic wrongs, therefore international law does not intervene. Where state actors violate international norms, that conduct becomes a concern of the international community because a nation is the offender and the people are otherwise unprotected by law. It is only when the state, or persons acting in concert with the state, commits prohibited acts that violations arise under international law. Any other rule would inject the international community into the domestic affairs of the individual nations beyond the intention of any treaty, or customary international law.

The decision is in conflict with every relevant act of Congress. As an illustration, the Torture Victims Protection Statute applies only to act. "under actual or apparent authority, or color of law, of any foreign nation." TVPA, Sec. 2(a). It also requires a plaintiff to exhaust remedies in the nation where the conduct alleged occurred. Id. Sec. 2(b).

The reference in the legislative history of the TVPA to 42 U.S.C. 1983 for aid in the interpretation of the meaning of its use of the phrase "color of law" is instructive. As with all federal civil rights legislation, the Congress is limited to its delegated powers, by the 10th Amendment to the Constitution and by considerations of federalism. Congress necessarily limited the reach of 1983 to state action, or action under color of law, which includes concerted action and acts by symbiotic relationship between the state and private individuals.

The decision violates clearly established principles under 1983 and conflicts with innumerable decisions thereunder. Purely private conduct, no matter how wrongful, is not reached by 1983. See, NCAA v. Tarkanian, 488 U.S. 179, 191 (1988).

As the U.S. submission states, no treaty relied on by the appellants is self executing and therefore no treaty can be the basis for federal jurisdiction directly, or under the Alien Tort Statute. Statement of Interest, pp. 15-18. The decision conflicts with the implementation acts of the treaties relied upon.

There is the necessary implication from clear consistent congressional assertions that these treaties do not provide a basis for civil action in the U.S., that Congress believed no other basis for jurisdiction existed, otherwise its assertions are meaningless. See, Torture Convention, 18 U.S.C. 2340 - 2340(B), at 2340(B) (1994); Genocide Convention, 18 U.S.C. 1091-1092 at 1092 (1988). This decision conflicts with those Congressional acts.

The Court has reasoned otherwise, Opinion at 18:

Though Congress provided that the Genocide Convention Implementation Act shall not "be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding," id. 1092, the legislative decision not to create a new private remedy does not imply that a private remedy is not already available under the Alien Tort Act.

The implementation act shows that Congress did not believe a private remedy was "already available under the Alien Tort Act. and after 200 years there we. no existing law which eight have suggested to the Congress that such private remedies were available for private non-state acts. And by their very nature, the conduct addressed in these conventions is the conduct of state actors. It makes no sense for Congress to close the doors of the Courts of the United States to actions based directly upon the treaties only to permit the treaties to be considered as part of the law of nations under the Alien Tort Statute. The Congress has consistently acted to prevent private actions for torts committed overseas, except in its codification of Filartiga where it requires state action and equitably adds jurisdiction for such actions when brought by U.S. citizens who are not included in the Alien Tort Statute.

The Court's several references to authorities holding individuals responsible under international law, see Opinion, pp.16-18, confuses individual responsibility with state action, failing to recognize all its references are to individual acts under color of law. A crowning achievement of the Nuremberg principles is the establishment of individual responsibility for crimes against peace, war crimes and crimes against humanity, but every act charged against individuals, including industrialists was in concert with the Nazi government. Had Jack the Ripper privately plied his trade in Heidelberg during the war, he would not have been brought before the International Tribunal at Nuremberg.

III. The Remand To Determine Whether The Criteria For A State Is Satisfied For Purposes Of State Action Was Error

The decision remands the case to enable appellants to endeavor to prove Srpaka was a state. This conflicts with (a) appellants. own statement "Karadzic is not an official of any government," (b) the claims of Boania to sovereignty over all the lands involved and its recognition by the U.S., most other nations and U.N. membership, the decision of the District Court that Srpska in not a state, Doe v. Karadzic, 866 F.Supp at 741, d) the U.S. Statement, n. 2 at 3, that Srpska does not meet the definition of a state, e) Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d cir. 1991); Tel-Oren, supra, 726 F.2d at 791, rejecting claims of state action under similar circumstances.

IV. Denial Of Immunity, Conflicts with Circuit And Other Precedents

The decision is in direct conflict with Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991). The Klinghoffer plaintiffs were U.S. citizens and residents of Manhattan. The Court first observed that except for its U.N. invitation, the defendant would not be entitled to enter the U.S. at all, as is true here. It then held, "and more importantly," that the U.N. could not function without such immunity for its invitees. Because the PLO had maintained a mission in New York since 1974, it was necessary to determine on remand whether non-U.N. related activities of the PLO in the U.S. provided a basis for personal jurisdiction over the PLO in New York.

Klinghoffer recognized a necessary functional immunity for the Palestine Liberation Organization from personal jurisdiction because of its work at the U.N., holding "basing jurisdiction on the PLO's participation in U.N.-related activities would put an undue burden on the ability of foreign organizations to participate in the U.N.'s affairs." Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 51 (2d Cir. 1993).

In Klinghoffer an immunity from service of process for U.N. related activities was recognized by this Court. In Karadzic it is now rejected.

The U.N. Legal Advisor, Carl-August Fleischhauer who is now on the International Court of Justice at the Hague provided a letter for the record in Klinghoffer, dated June 11, 1986, (copy attached) which stated:

Furthermore, since the permanent presence of the Palestine Liberation Organization in New York is a direct result of General Assembly resolution 3237 and is restricted to United Nations matters, that presence could appropriately be considered as not covering the receipt of service of legal process both personally and in rem in regard to matters completely unrelated to that presence,

In an unrelated but important District Court case, Judge Palmieri held:

Thus the language, application and interpretation of the Headquarters Agreement lead us to the conclusion that it requires the United States to refrain from interference with the PLO Observer Mission in the discharge of its functions at the United National U.S. v. PLO, 695 F.Supp 1456 at 1468 (S.D.N.Y. 1988).

The U.S. Court of Appeals for the District of Columbia has found a similar though broader immunity for persons coming to the nation's capital for "government contacts." See, Naartex Consulting Corp. v. Watt, 722 F.2d 779 (D.C. Cir. 1983), cert. denied, 467 U.S. 1210 (1984). See e.g. Sullivan v. Tagliabue, 785 F.Supp 1076, 1080-81 (D.R.I. 1992) and Nicols v. G.D. Searle Co., 783 F.Supp. 233, 242-43 (D.Md. 1992), aff'd, 991 F.2d 1195 (4th Cir. 1993), for application of the government contacts exception outside the District of Columbia.

non-resident who comes into the jurisdiction to participate as a party or witness in judicial proceedings, n. 7 at 51, citing as examples Stewart v. Ramsay, 242 U.S. 128 (1916) and Shapiro Son Curtain Corp. v. Glass, 348 F.2d 460 (2d Cir.), cert denied, 382 U.S. 942 (1965). This rule also has as a basic purpose the important protection of governmental proceedings from undue interference.

The jurisdictional immunity recognized in Klinghoffer as barring undue interference in U.N. affairs is kin to the well established common law rule that Klinghoffer noted which exempts from service of process and personal jurisdiction a non-resident who comes into the jurisdiction to participate as a party or witness in judicial proceedings, n. 7 at 51, citing as examples Stewart v. Ramsay, 242 U.S. 128 (1916) and Shapiro Son Curtain Corp. v. Glass, 348 F.2d 460 (2d Cir.), cert denied, 382 U.S. 942 (1965). This rule also has as a basic purpose the important protection of governmental proceedings from undue interference.

Although the exemption has most often been applied to participation in litigation or judicial proceedings it has much wider application as described in Durst v. Tautges. Wilder McDonald, 44 F.2d 507, 509 (7th Cir. 1930). See also, Filer v. McCormick, 260 Fed. 309 (N.D.Calif. l919)(exemption applied to a non-resident bank president attending an emergency conference to raise money for the U.S. in World War I); Pavlo v. James, 437 F.Supp. 125 (S.D.N.Y. 1977)(Goettel, D.J.)(attendance at arbitration proceedings); Chase National Bank v. Turner , 269 N.Y. 397 (1936)(client's attendance as observer at an appeal): Youpe v. Strasser, 113 F.Supp 289 (D.D.C. 1953), appeal dismissed sub nom. Youpe v. Moses, 213 F.2d 613 (D.C.Cir. 1954)(the appearance of a witness at a hearing before an administrative official, and a witness before a Committee of Congress).

Thermoid Company v. Fabel, 4 H.Y.2d 494 (1958), provides a compelling precedent, upholding the exemption in the face of a statute that arguably made it unavailable as is developed in appellee's brief, 13-15.

Even in cases where a foreign sovereign is not exempt from suit because of exceptions in the Foreign Sovereign Immunities Act, suits can be brought under such exceptions only where there is "some form of substantial contact with the United States.. Verlinder B.V. v. Central Bank of Nigeria, 461 U.S. 481, 490 (1962).

It is unthinkable that U.S. courts would not enforce this historic principle for a party invited to participate in peace negotiations under U.N. auspices where the parties and alleged conduct have no other contact with the United States than that attendance.

V. This Case Is Nonjusticiable

The determination of justiciability is the responsibility of the Judicial Branch. This case meets the criteria in Baker v. Carr, 369 U.S. 186, 217 (1962), which led Judge Robb to the conclusion that dismissal of the claims in Tel-Oren was required for nonjusticiability. It involves standards that defy judicial application, 726 F.2d at 823-24, questions that touch on sensitive matters of diplomacy and foreign policy that uniquely demand a single voiced statement of policy by the United States government, id. at 824-25, and questions connected to conduct of war and achievement of peace of a kind that have historically been within the exclusive domain of the executive and legislative branches. Here, far more than in Tel-Oren, the possible consequences of judicial action may be injurious to the national interest. Id. at 826-27.

A dismissal for nonjusticiability is without prejudice.

Plaintiffs' claims are justiciable in former Yugoslavia. They are not justiciable here.

VI. Unsupported Statements In The Court's Opinion On Forum Non Conveniens Should Be Stricken

The Court's peremptory conclusion that courts are not now available in former Yugoslavia to entertain plaintiffs' claims is in conflict with fact as is shown by a wide body of published materials and news reports of which judicial notice may be taken. Civil courts are functioning in all jurisdictions. Criminal proceedings in Boania, Croatia and Serbia against Bosnian Serbs, Muslims and Croatians have been described by the media, including Reuters, the Washington Post and others. The International Tribunal for Former Yugoslavia has specifically requested governments to stay their proceedings to avoid interference with its work. See deferral request and decision, May 16, 1996, item 2 of the Supplementary submission herein by plaintiffs/appellants.

Croatia has undertaken recent major judicial reform. See e.g.

Jozo Cizinic, Recent Developments, The Legal Services Act of the Republic of Croatia -- A Guarantee of the Advocate's Independence and Autonomy, 29 The International Lawyer 209 (Spring 1995), detailing court activities and availability of counsel.

There is no basis in fact for the Court's conclusion that Courts throughout the region are not now functioning and available, and will not remain so. Courts with broader power to obtain personal jurisdiction are probable after the hoped for peace agreement.

The Court's suggestion that plaintiff preferred a United States forum is wrong. Plaintiffs never would have imagined this forum. Their lawyers chose them and the forum to make political statements since even if jurisdiction, justiciability and liability are established no recovery of damages or effective injunctive relief is possible through the U.S. courts.

Litigation here is inconvenient, if not impossible. Pena Irala lived here. Where else could he be sued? None of the parties in this case live here and few if any can afford on their own to travel, or bring witnesses here. Will appellee be granted the immunity from service of process denied here, if he were able to come to defend the case? Would this mean U.S. courts value tort litigation more than peace? How will the court enforce a subpoena for documents, or testimony? The issue of forum non conveniens should be remanded for decision on a fact record as urged by the U.S., Statement, p. 18, if the decision of Judge Leisure is ultimately reversed.

Conclusion

This case should be reheard by the panel or by the Court in banc and upon rehearing the judgments of the District Court dismissing plaintiffs' claims should be affirmed.

Dated: New York, N.Y.

October 27, 1995

Respectfully submitted,

Ramsey Clark
Lawrence w. Schilling
36 East 12th Street
New York, N.Y. 10003
(212) 475-3232
Attorneys for Appellee
Radovan Karadzic
Attachments
Opinion, Court of Appeals, Second Circuit, October 13, 1995
Letter from Carl-August Fleischhauer, Legal Advisor to the United Nations, to Ramsey Clark, dated June 11, 1986



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