Logo
Doe v. Karadzic : Apellee’s Brief-2nd Circuit
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. 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 Boania-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.

Argument

I. There Is No Jurisdiction Over Appellee

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

The Headquarters Agreement Between the United Nations and the United States has the force of a treaty and must be given effect as the supreme law of the land. U.S. v. PLO, 695 F.Supp. 1456, 1458 (S.D.N.Y. 1988)(Palmeri, D.J.). The United Nations established its headquarters in the United States relying on the protection of the treaty. The effective performance of the United nations at its headquarters depends on the faithful performance by the United States of its duties. under the agreement.

Defendant was a United Nations invitee at the time service of process was purported to have been made upon him. He was issued a C-2 visa signifying his admission to the United States under sec. lOl(a)(15)(C) of the Immigration & Naturalization Act as an alien in transit to and from the United Nations Headquarters District. The special conditions of admission imposed upon him by the Immigration and Naturalization Service upon entry expressly required him to proceed directly to the United Nations Headquarters District, to remain within ten blocks of the District, to depart forthwith from the United States upon expiration or cancellation of his invitation and not to engage "in any activities in the United States outside of your official duties with the United Nations District Headquarters."

The explicit recognition by the United States Department of State at its daily press briefings on February 2, 1993, that defendant's admission to the United States at the invitation of the United Nations to attend the peace talks was required under the Headquarters Agreement authoritatively and conclusively confirms the applicability of the Agreement to defendant's visits.

Section 11 of the Headquarters Agreement obligates the United states to allow transit, entry and access of invitees to, the Headquarters District. It prohibits any impediments to transit to be imposed by "federal, state or local authorities of the United States." Section 13 limits the applicability of U.S. laws and regulations regarding the entry and residence of persons referred to in Section 11. Section 12 provides that provisions of Section 11 be applicable irrespective of the relations existing between the Governments of the persons referred to in Section 11 and the Government of the United States.

Section 9 recognizes the Headquarters District to be inviolable, and provides that service of legal process may take place within the Headquarters District only with the consent of and under conditions approved by the Secretary-General.

For a federal court to find there is personal jurisdiction over and uphold service of process on a U.N. invitee such as defendant, not otherwise present in the United States or subject to service of process in any state or federal jurisdiction, while transitorily in New York, only because he was requested to come to the United Nations to participate in negotiations seeking to stop an ongoing war and secure peace, would violate Sections 9, 11 and 13 of the Headquarters Agreement. At a minimum, in order to be valid such service would have to take place only with the consent of and under conditions approved by the Secretary-- General. 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)(". . . we agree there is no personam jurisdiction over defendant."). No such consent was given nor could it have been obtained in the present case.

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

Because the United Nations headquarters is located in New York, federal courts in the Second Circuit will bear primary responsibility for determining how U.S. law applies to U.N. Headquarters activities and the rights and immunities of U.N. Officers and personnel, member nations and their officials and staffs, foreign governmental and non-governmental organizations, other participants in U.N. affairs and U.N. invitees. In a leading case, a single District Judge in the Southern District of New York so persuasively rejected a unanimous Congressional enactment vigorously prosecuted by the Department of Justice, the Anti Terrorist Act of 1988, which mandated the closure of the Permanent Observer Mission of the Palestine Liberation Organization, an unpopular foreign entity which had been granted permanent status by the U.N., that the U.S. did not even appeal. That Court 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 Nations.

U.S. v. PLO, supra, 695 F.Supp at 1468.

In a later controlling case, this Court recognized a necessary functional immunity for the Palestine Liberation Organization from personal jurisdiction on the basis 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. 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.

President Karadzic came to New York solely at the request of the U.N. on three brief occasions in February and March 1993 to participate in peace negotiations. He was under heavy U.S. law enforcement protection throughout each visit. He was restricted to Manhattan and prohibited from engaging in any activities outside his official duties while in the U.S. As required, he departed forthwith from the U.S. on completion of the negotiations. He had visited the U.S. only once before in 1974 to study poetry and had no presence, property, or activity in the U.S. since. There is no basis for the exercise of personal jurisdiction over President Karadzic except his mere presence at the request of the U.N.

In analogous situations, courts have prevented impairment of government functions inherently involved when persons who enter a jurisdiction solely to participate in a government proceeding are subject to the service of process and jurisdiction of the courts.

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) for application of the government contacts exception outside the District of Columbia. Underlying such immunity is the recognition that for government institutions to function there must be uninhibited access to the institutions involved. Without such access the public benefits sought from such institutions are lost. The United Nations cannot fulfill its obligations to the peoples of the world if access to its headquarters by its invitees is burdened by the risk of arrest, or subjection to civil suit for acts which occurred elsewhere in the world.

Recognition of the practical need to protect government institutions from the frustration of their functions by private litigants, seeking to take advantage of the temporary presence of foreigners for participation in government proceedings is as old in our legal history as the early common law. Here private litigants who have never been in the U.S. seek to use federal courts to pursue private claims arising half a world away "against a non-state individual attending the U.N. at its express nvitation and here solely to participate in vital peace egotiations. To burden the U.N.'s ability to conduct its business at its Headquarters with such a threat to its invitees would cripple its ability to function at its headquarters. International peace negotiations for Boania and how many other places might have to be conducted elsewhere. And U.S. Courts here could bear the burden of litigation among other parties from all over the world that is impossible to fairly and effectively adjudicate.

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. The long standing well established common law rule which bars service of process upon a non-resident who comes to a jurisdiction to attend a governmental proceeding provides strong support for functional immunity in the present case.

Although this common-law exemption most often applies to particiation in litigation or judicial proceedings it has much wider application under both federal and New York common-law, as well as in a majority of other jurisdictions. The wide scope of the rule is described in Durst v. Tautoes. Wilder & McDonald, 44 F.2d 507, 509 (7th Cir. 1930) as follows:

In some jurisdictio acceptable. See Restatement of the Law Third, Restatement of the In some jurisdictions the tendency has been to enlarge rather than to diminish the privilege, so as to afford protection to parties and witnesses from all forms of civil process during their attendance at court, and for a reasonable time in going and returning. Hearings before arbitrators, legislative committees, commissioners in bankruptcy, and examiners and commissioners to take depositions have all been declared to be embraced within the scope of its application.

It has also been held that this privilege of exemption applies to nonresident attorneys as well as to nonresident witnesses and parties.

It has also been held that there can be no distinction between proceedings pending in the local courts, and proceedings had in the local jurisdiction in aid of judicial proceedings pending in another state of the Union. (citations omitted).

It has been applied to a non-resident bank president attending an emergency conference to raise money for the United States war effort in Wold War I. Filer v. McCormick, 260 Fed. 309 (N.D.Calif. 1919). The exemption extends to attendance at arbitration proceedings. Pavlo v. James, 437 F.Supp. 125 (S.D.N.Y. 1977)(Goettel, D.J.); Treadway Inns Corp v. Chase, 47 M.2d 937, 263 N.Y.S.2d 551 (Sup.Ct. Monroe Co. 1965), and to a client who came from Connecticut to New York to consult with counsel and listen to an appeal to which she was a party, without there being any contemplation of her actual participation in legal proceedings. Chase National Bank v. Turner, 269 N.Y. 397 (1936). See also, Mattison v. Lichlyten, 162 Cal.App.2d 60, 327 P.2d 594 (l958) and cases there cited.

The exemption has been held applicable to the appearance of a witness at a hearing before an administrative official, and a witness before a Committee of Congress, the court. taking the view that the immunity should extend to witnesses before any one of the three branches. See, 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). See generally, 2 Moore's Federal Practice, &4.10[b], Immunity of Nonresident Parties,Witness, Attorneys and Other Persons to Process, 4-201 (2d edition 1994); 1 Weinstein, Korn & Miller, New York Civil Practice, &308.05, Immunity While Voluntarily Attending Judicial Proceeding, 3-254.45 (1994); 2A Weinstein, Korn & Miller &2303.04, Immunity From Service of Subpoena, 23-43.

Thermoid Company v. Fabel, 4 N.Y.2d 494 (1958), provides an example of the strong policies underlying the common law service of process exemption even in the face of a statute that arguably made the exemption unavailable.

The defendant in Thermoid, a citizen and resident of North Carolina, was indicted for tax fraud in the United States District Court for the Southern District of New York. After several weeks of trial defendant pled guilty to one count and nolo contendere to the remaining counts against him, his bail was continued and he returned to North Carolina. He returned to New York and was given a suspended jail sentence and fined. As he left the federal courthouse after being sentenced, he was served with a summons and complaint in a civil action by a corporation seeking damages for essentially the same acts as charged in the indictment. The defendant's motion to quash service on the ground he was immune from service was granted by Special Term. The Appellate Division reversed principally on the ground that under Section 855 of the Code of Criminal Procedure immunity from civil process was unavailable to a criminal defendant after his conviction. C.C.P. '855 provided:

A person brought into this state on or after waiver of extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceedings to answer which he is being or has been returned until he has been convicted in the criminal proceeding, or if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.

The New York Court of Appeals reversed, holding that the common law exemption remained generally available to criminal defendants after conviction. It stated:

It should be sufficient ground for reversal that this case comes within the spirit and terms of the common-law immunity rule which has existed "from earliest times" and which expresses a "privilege of the court" as well as of the defendant (Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 380, 90 N.E. 962, 963, supra). And comity suggests we should carefully avoid interference with a privilege of the Federal courts (see Powell v. Pangborn, 161 App.Div. 453, 456, 145 N.Y.S. 1073, 1075).

Entitlement to the common law exemption reguires a showing that a defendant is a non-domiciliary of New York, that he came in a governmental proceeding and that there is no basis for acquiring jurisdiction over his person in New York other than by personal service, e.g. that neither CPLR 301 or 302 provides a basis for acquiring personal jurisdiction over him. See Moreo v, Reagan, 140 A.D.2d 313, 527 N.Y.S.2d 547, 549-50 (2d Dept. 1988): Pavlo v. James, supra, 437 F.Supp. 125; Andros Compania Maritima. S.A. v. Intertanker Ltd., 714 F.Supp. 669, 674 (S.D.N.Y. 1989)(Leisure, D.J.). It requires that he leave New York within a reasonable time after he finishes his participation in the governmental proceedings. See Application of Robinson, 18 A.D.2d 449, 240 N.Y.S.2d 82, 84-85 (1st Dept. 1963). All of these requirements are met by Dr. Karadzic in the present case.

There is no basis in law for federal courts to assert personal jurisdiction over President Xaradzic on the facts of these cases.

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

This action presents an extreme case of "tag jurisdiction," i.e. jurisdiction based on purported service of process on a person only transitorily present in the territory of the state or the United States. See, Newman and Burrows, Tag Jurisdiction, 209 N.Y.L.J., p. 3, c. 1 (April 15, 1993), briefly discussing the issue of "tag jurisdiction" in this case.

None of the parties have any connection with New York or the United States. The events that are the subject of the action are unconnected with New York or the United States. Neither plaintiffs, defendant nor his government have any contact with the United States. Defendant's presence in the United States was transitory not only in fact, but de jure by official by U.S. mandate imposed upon his admission. This included geographical restrictions limiting defendant to within ten blocks of the U.N. Headquarters, restrictions limiting his activities to official duties and a requirement that he depart the United States forthwith when his invitation expired. Defendant's presence was transitory by reason of his own responsibilities and mission which urgently required his presence elsewhere. He left the United States immediately upon completion of each of the three sessions of peace talks he attended.

Under international law. "tag" jurisdiction is not generally acceptable. See Restatement of the Law Third, Restatement of the Foreian Relations Law of the United States, comment at 307. On the extreme facts of the present case such jurisdiction is totally unfounded. International law should control this issue either by direct application in view of plaintiffs' heavy reliance on international law, or by incorporation or reference under the choice of law rules of New York, as the forum state. See Klinghoffer, supra, applying the law of New York to the issue of personal jurisdiction in an admiralty case, 937 F.2d at 50; Walpex trading v. Yacimientos Petroliferos, 756 F.Supp. 136, 140 (S.D.N.Y. l991)(Leisure, D.J.).

Measured by U.S. Constitutional standards the service of process plaintiffs rely on must fail. Defendant lacks the "minimum contacts" with New York that due process requires. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Appellants' reliance on Burnham v. Superior Court of California, 495 U.S. 604 (1990) and Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), on remand 577 F.Supp 860 (E.D.N.Y. 1984), to establish the sufficiency of their service of process and the personal jurisdiction of the Court over defendant is misguided. Neither case, nor others cited by plaintiffs, address the special immunity from service and absence of personal jurisdiction possessed by a United Nations invitee who is an essential participant in crucially important peace negotiations.

Pena-Irala was the former Inspector General of Police in Asuncion, Paraguay. He was living in the United States, had been here for nine months and had illegally remained beyond the term of his visa when sued and served. He neither had nor claimed any immunity or lack of jurisdiction as a U.N. invitee, or any relationship to the United Nations, or any other governmental forum.

Burnham, a resident of New Jersey, visited California on business, after which he visited his children who resided there with their mother, Burnham's wife. Upon returning his older child to Mrs. Burnham's home after a week-end visit he was served with a summons and divorce petition. He returned to New Jersey and moved "to quash service of process on the ground that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the state for the purposes of conducting business and visiting his children. n Burnham, supra, 495 U.S. at 608. Burnham neither had nor claimed any immunity or lack of jurisdiction as a U.N. invitee, or any relationship to the United Nations or any other governmental forum.

To paraphrase the observations of this Court in Klinghoffer, 937 F.2d at 51, defendant's admission to the United States and his participation in peace talks at the United Nations was possible only because the Headquarters Agreement effectively removes the U.N Headquarters and related areas from the jurisdiction of the United States and is dependent on the legal fiction that the U.N. Headquarters is not really U.S. territory at all, but is rather neutral ground over which the United States has ceded control. Service cannot tag a person who is not there.

Foreian Relations Law of the United States, comment at 307. On the extreme facts of the present case such jurisdiction is totally unfounded. International law should control this issue either by direct application in view of plaintiffs' heavy reliance on international law, or by incorporation or reference under the choice of law rules of New York, as the forum state. See Klinghoffer, supra, applying the law of New York to the issue of personal jurisdiction in an admiralty case, 937 F.2d at 50; Walpex trading v. Yacimientos Petroliferos, 756 F.Supp. 136, 140 (S.D.N.Y. l991)(Leisure, D.J.).

Measured by U.S. Constitutional standards the service of process plaintiffs rely on must fail. Defendant lacks the "minimum contacts" with New York that due process requires. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Appellants' reliance on Burnham v. Superior Court of California, 495 U.S. 604 (1990) and Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), on remand 577 F.Supp 860 (E.D.N.Y. 1984), to establish the sufficiency of their service of process and the personal jurisdiction of the Court over defendant is misguided. Neither case, nor others cited by plaintiffs, address the special immunity from service and absence of personal jurisdiction possessed by a United Nations invitee who is an essential participant in crucially important peace negotiations.

Pena-Irala was the former Inspector General of Police in Asuncion, Paraguay. He was living in the United States, had been here for nine months and had illegally remained beyond the term of his visa when sued and served. He neither had nor claimed any immunity or lack of jurisdiction as a U.N. invitee, or any relationship to the United Nations, or any other governmental forum.

Burnham, a resident of New Jersey, visited California on business, after which he visited his children who resided there with their mother, Burnham's wife. Upon returning his older child to Mrs. Burnham's home after a week-end visit he was served with a summons and divorce petition. He returned to New Jersey and moved "to quash service of process on the ground that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the state for the purposes of conducting business and visiting his children. n Burnham, supra, 495 U.S. at 608. Burnham neither had nor claimed any immunity or lack of jurisdiction as a U.N. invitee, or any relationship to the United Nations or any other governmental forum.

To paraphrase the observations of this Court in Klinghoffer, 937 F.2d at 51, defendant's admission to the United States and his participation in peace talks at the United Nations was possible only because the Headquarters Agreement effectively removes the U.N Headquarters and related areas from the jurisdiction of the United States and is dependent on the legal fiction that the U.N. Headquarters is not really U.S. territory at all, but is rather neutral ground over which the United States has ceded control. Service cannot tag a person who is not there.

II. The District Court Properly Dismissed Appellants' Actions For Lack Of Subject Matter Jurisdiction

A. The District Court Lacked Subject Matter Jurisdiction under The Alien Tort Claims Act,28 U.S.C. Sec. 135O And the Torture Victim Protection Act Filartiga v. Pena-Irala, supra, 630 F.2d 876 was commenced in federal district court in the Eastern District of New York by two Paraguayan citizens against a former Inspector General of Police in Asuncion, Paraguay, who was then living in Brooklyn. The Complaint alleged that Pena had wrongfully caused the death of plaintiffs' son and brother, Joelito, in Paraguay by kidnaping and torturing him to death in retaliation for his father's political activities and beliefs. Jurisdiction was claimed under 28 U.S.C.' 1350 and 28 U.S.C. ' 1331.

After concluding that "official torture is now prohibited by the law of nations," 630 F.2d at 885, this Court held that the torture conducted by Pena as a police official gave rise to an actionable civil claim against him within the subject matter jurisdiction of the district court under sec. 1350.

In the present case, appellants are attempting to stretch Filartiga far beyond its facts and its legal holding. They are seeking to extend Filartiga to a defendant who is not an official of a recognized nation and to an entirely different situation than torture in the past by a former police official -- to atrocities allegedly committed by one faction in the course of ongoing hostilities and violence in Boania-Herzagovina. Many nations, including the United States, are actively participating in urgent ongoing diplomatic and other efforts to achieve peace and resolve the conflict that is the subject of these actions.

As Judge Leisure observed below, the law of nations encompasses rules and principles binding upon civilized states in their relation to one another and has also evolved to include a nation acting against its own citizens or a foreign government acting against an individual. It does not encompass non-state action. 866 F.Supp at 739.

The complaints in the present two cases are based upon non-state action and seek to impose civil liability upon the defendant, as leader of a Bosnian-Serb faction which has declared itself a republic, the Republic of Srpaka. Srpaka has not been recognized as a state by other nations or by the United Nations. Judge Leisure held that defendant's faction does not constitute a recognized state any more than did the PLO, as it existed at the time that the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984), cert. denied, 470 U.S. 1003 (1985), discussed below, or than did the Nicaraguan Contra at the time Justice Scalia decided Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.Cir. 1985). He found that the members of defendant's faction "do not act under the color of any recognized state law" (citations omitted), stating, 866 F.Supp at 741:

The situation in the former Yugoslavia is such that the present military factions are less stable and less identifiable than was the PLO at the time of Tel- Oren. The Boanian-Serbs have achieved neither the level of organization nor the recognition that was attained by the PLO, as manifested by the PLO's achieving the position of a permanent observer at the U.N.

Pointing to plaintiffs' allegations, Judge Leisure emphasized that defendant does not act with the authority of any foreign nation, stating, b~ at 742:

In fact, X. Plaintiffs' moving papers describe Xaradzic as "neither a head of state nor a diplomat of a recognized state." K.Mem. at 5. K. plaintiffs further acknowledge that "Karadzic is not an official of any government." K.Mem. at 21 n. 25.

Judge Leisure relied on Judge Edward's extensive concurring opinion in Tel-Oren in declining as he did "to extend '1350 to redress acts of torture engaged in by private individuals." 866 F.Supp. at 741. Judge Edwards declined to extend A1350 to the PLO on a thorough analysis of the statute's history and applicable precedents. After examining at length the origins of sec. 1350 as part of the original Judiciary Act of 1789 and considering alternate rationales for the statute, 726 F.2d at 782-86, Judge Edwards concluded that unlike Filartiga, where this Court "surveyed the law of nations and concluded that official torture constituted a violation, n id. at 791, (emphasis in original), plaintiffs' allegations of torture, murder and the like which Judge Bork labeled "a tale of horror" id. at 799, failed to show official or state-initiated torture and could not Aso long as the PLO is not a recognized member of the community of nations." (footnote omitted), id.,~ at 791. Judge Edwards proceeded.

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.

Judge Edwards then considered the historical evolution of the role of the individual in international law, id. at 794, and addressed the issue whether torture is an exception to the general rules against individual liability, id. at 794. He concluded based on an examination of definitions of torture set out in international documents and other authorities that the consensus on non-official torture did not warrant an extension of Filartiga, and he therefore declined to read '1350 to cover torture by non-state actors, absent guidance from the Supreme Court on the statute's usage of the term "law of nations" id. at 795. The Congress ratified Judge Edwards' decision by its codification of the result he reached in Tel-Oren in the Torture Victim Protection Act of 1991.

Judge Edwards was the only member of the panel in Tel-Oren to accept the Filartiga analysis. Judge Bork viewed subject matter jurisdiction as lacking because no civil cause of action was created under '1350 or treaties absent an express Congressional grant or a rule of international law making a violation of the law of nations or a treaty actionable under municipal law. Judge Robb would have dismissed the case on the ground that it presented unjustifiable political questions, a ground Judge Bork did not reach.

Appellants err in their presentation of several authorities. Doe appellants cite Linder v. Portocarrero, 963 F.2d 332 (llth Cir. 1992) as reversing the District Court on the very point for which Judge Leisure cited the District Court, implying that Judge Leisure overlooked the reversal. Doe brief at 23-24, see also Kadic brief at 21 and 32-33. Judge Leisure was perfectly aware of the appellate decision which he cited, 866 F.Supp. n. 8 at 739. The District Court's opinion was not reversed on the points for which Judge Leisure cited it, see 866 F.Supp. at 840 and 841. The Court of Appeals decided there was diversity jurisdiction and an alleged "claim under Florida tort liability" against individual defendants for tortious actions in Florida. It expressly did not "reach or decide the jurisdictional arguments of the plaintiffs concerning the applicability of customary international law or the Geneva Conventions." id. at 337. It stated, id. at 336:

The sweeping allegations of the complaint led the district court into a thicket of non-justiciable claims for relief that overshadowed the narrow issue of Florida tort liability now presented to us. Except for this issue, the district court properly dismissed the complaint.

Another example of overstatement is Aquinda v. Texaco Inc., 1994 U.S. Dist. LEXIS 4718, which is repeatedly cited by Doe appellants, and is quoted and described as having "upheld an ATCA claim" against Texaco, Doe brief at 30, see also 11 and 15. The discussion in Aquinda was dictum the Court actually ruling:

Decision concerning the possible applicability of 28 U.S.C. 1350 to this case must await additional information after further discovery focusing on events, if any, initiated or assisted in the United States which might violate international law.

The Torture Victim Protection Act of 1991, codified in a note under 18 U.S.C. 61350 ("TVPA"), expressly establishes for U.S. citizens as well as aliens a civil cause of action for damages to redress torture or extrajudicial killing committed under color of law. The TVPA provides in part:

Sec. 2 Establishment of civil action.

A(a) Liability. -- An individual who, under actual or apparent authority, or color of law, of any foreign nation -

A (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

A(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative , or to any person who may be a claimant in an action for wrongful death.

The TVPA codifies the result reached in Filartiga. It makes explicit and confirms that both '1350 and the TVPA require as a prerequisite to civil liability that the defendant be acting under actual or apparent authority, or color of law, of a foreign nation, and that both statutes are inapplicable to non-state action.

Plaintiffs' civil claims under the TVPA fail for lack of state action for the same reasons as their claims under '1350. Appellants argue that despite the absence of diplomatic recognition defendant is the head of a de facto regime, and on the basis of cases dealing with de facto regimes in unrelated contexts, not for purposes of sec. 1350 or the TVPA, argue that defendant should be treated as the head of a foreign nation for purposes of both statutes. Appellants fail to note the absence of precedent and the factual reach of the argument they are advancing or to acknowledge how drastically it threatens to expand the potential coverage of these statutes.

Non-state entities, bearing strong resemblance to a state, exist today throughout the world, charged with the commission of atrocities and other serious human rights violations, as for example, in Afghanistan, Algeria, Angola, Cambodia, Guatemala, Liberia Mexico, Peru, the Russian Federation, Somalia and Turkey. Like the PLO at the time of Tel-Oren, and the Contra in Nicaragua, both considered by Judge Leisure below, these nonstate entities are not within the reach of the law of nations and the actions of leaders and individuals associated with these entities cannot serve as the basis for actionable violations of the law of nations under sec. 1350 or the TVPA. Cf. Tel-Oren, 726 F.2d at 826-27 (Robb, J., concurring).

In an effort to overcome the absence of state action or action under color of law on defendant's part resulting from the fact that his republic is treated internationally as a non-state entity, appellants further contend that defendant should be viewed as acting under color of the law of Arump Yugoslavia. "The Kadic complaint alleges that the defendant acted "in collaboration with the official Serbian regime in Belgrade, Yugoslavia, " pare. 27. On this appeal, the Kadic appellants argue that the collaboration and "symbiotic relationship" between defendant and the regime in Belgrade "makes him an arm of that state," and that their complaint alleges "ample fact. showing that defendant's relationship with rump Yugoslavia constitutes state involvement." Kadic Brief at 45-46. See Doe complaint, && 6, 16 (A4, 7) alleging that defendant's forces had the support of Yugoslavia and its army and brief at 24 et seq., arguing, among other things, that defendant may have acted under the color of law of Yugoslavia "if he entered into a conspiracy with Yugoslav forces to commit the abuses at issue here, or if he acted under the actual or apparent authority of that government."

To be successful as a basis for jurisdiction, this argument necessarily rests on facts that need to be clearly alleged, plausible and proven in fact. United Food Local 919 v. centermark Properties, 30 F.3d 298, 301 (2d Cir. 1994). The allegations of appellants' complaints are insufficient to charge state action against Serbia in a suit against Radovan Karadzic. Proof of sufficient allegations would be extremely difficult, the subject being inherently political, speculative, foreign and covert whatever the facts may be. The task thus posed brings to mind Judge Bork's appraisal in Tel-Oren of a similar contention that the PLO was acting as agent of Libya, 726 F.2d at 821:

The prospect of a federal court ordering discovery on such an issue to say nothing of actually deciding it, is, or ought to be, little short of terrifying.

Judge Leisure correctly ruled that subject matter jurisdiction of plaintiffs' claims under sec. 1350 and the TVPA was lacking because the official action under color of law necessary to establish a civil cause of action cognizable under these statutes is absent in this case. In addition, Judge Leisure correctly ruled that on the present record there is insufficient evidence addressing whether there has been the requisite exhaustion of remedies in the location of the tort, TVPA, sec. 2(b).

B. The District Court Lacked Subject Matter Jurisdiction Under 28 U.S.C.' 1331

Having ruled subject matter jurisdiction lacking under 11350 and the TVPA, Judge Leisure held that no civil causes of action existed or could be implied for which there is federal question jurisdiction under 28 U.S.C. '1331. Judge Leisure's rejection of jurisdiction under ' 1331 rests on the fundamental principle that the subject matter jurisdiction of the federal courts is not a matter of common law, and "exists only to the extent Congress has bestowed it, in the exact degree and character which to Congress may seem proper for the public good. H 866 F.Supp. at 743, quoting Judge Kearse dissenting in Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 429 (2d Cir. 1987), rev'd on other arounds, 488 U.S. 428 (1989).

Judge Leisure declined to find any implied rights of action in appellants' favor in view of the fact that Congress directly addressed the matter of civil remedies and created two express causes of action which excluded claims against non state actors under both '13SO and the TVPA. 866 F.Supp. at 743.

Judge Leisure's rejection of jurisdiction under '1331 draws additional support from the continuing current efforts of Congress to cut back on the subject matter jurisdiction of the federal courts. More specifically, Congress has enacted a number of statutes in the past decade to implement treaties and to cope with problems of international terrorism, torture and other gross misconduct occurring in violent struggles throughout the world. These legislative enactments unmistakably evidence an intent by Congress to preclude implied civil causes of action cognizable in the U.S. courts of the kind appellants are here urging which do not involve state action.

One such statute was passed by Congress in April 1994 to implement the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 18 U.S.C. '2340 - 2340B. This enactment confers a limited criminal jurisdiction to prosecute torturers in the Courts of the United States for acts committed elsewhere. It provides in '2340B that nothing in the statute shall be "construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding." This statutory language echoes "Senate resolution declaring that the principal provisions of the Convention, Articles 1 through 16, are not self-executing, i.e. that they create no legally enforceable right" and obligations in U.S. courts except to the extent Congress specifically enacts them. See 136 Cong. Rec. S17486-92 (daily ea., Oct. 27, 1990).

Appellants and amici rely heavily on the Genocide Convention to create civil causes of action in favor of aliens cognizable in U.S. courts. See e.g. Doe Brief at pp. 31-36, and Kadic Brief at 26, 27-28. This reliance is misplaced.

A similar Congressional disclaimer of any intent to create rights cognizable in civil actions is contained in the statute implementing the Genocide Convention, 18 U.S.C. S1091-92, enacted in 1988, which provides in '1092 that nothing in the statute shall be "construed as creating any substantive or procedural right enforceable by law by any party in any proceeding."

Senate Report 100-333, published in 1988 U.S.C.C.A.N. 4156, accompanying the bill states: "Legislation making genocide a crime under Federal law is necessary because the Convention is not self-executing. This means that the provisions of the treaty become effective under U.S. law only through the enactment of domestic legislation." The section by section analysis in the Senate Report explains the purpose of section 1092: "This section further provides that enactment of this legislation shall not create any new Federal substantive or procedural cause of action in civil proceedings." Congress revisited the genocide statute in 1994, by amending the punishment provisions to add death as a possible penalty under ' lO91(b)(1) and otherwise left the statute unchanged.

Congress's determination to guard against a potential flood of private actions by aliens against aliens in U.S. court seeking damages arising from events around the world having no connection with the United States is further demonstrated by the legislation against international terrorism that Congress has enacted piecemeal over a period of years beginning in 1986, and amended most recently in 1994, 18 U.S.C. ''2331-2339A. This legislation expressly creates civil remedies, '2333, for which it expressly provides jurisdiction and venue in federal district courts, '2334, but does so only for victims who are nationals of the United States or their survivors, see sec. 2333.

The thrust of much of the argument advanced by appellants and amicus is that the defendant's alleged conduct violates various treaties, should be punishable criminally and that as a result civil causes of action should be implied in plaintiffs' favor in the courts of the United States and presumably elsewhere throughout the world. These arguments overlook the need to distinguish criminal responsibility under international law from civil liability. See e.g. Aidi v. Yaron, 672 F.Supp 516, 518-19 (D.C.D.C. 1987).

To bolster the appropriateness of U.S. Courts as the forum for their claims, despite the absence of any nexus between the United States and plaintiffs and their claims and this defendant, appellants assert that there is no other forum in which civil claims can be asserted against the defendant. Appellants make this assertion ipse dixit, without attempting in any way to demonstrate its factual correctness. This assertion is entitled to no weight because it is unsupported and more fundamentally because it is contrary to the clearly expressed intent of Congress to curtail such civil actions in federal courts.

C.Dismiss Was Proper Under Rule 12(b)(1) Rather Than Rule 12(b)(6)

Appellants in Kadic argue that on a proper analysis the dismissal of their claims should be viewed as premised on legal insufficiency under Rule 12(b)(6) rather than lack of subject matter jurisdiction under Rule 12(b)(1). See brief at page 10. Dismissal for lack of subject matter jurisdiction was appropriate. Despite their extensive disagreement, all the judges in Tel-Oren, including Judge Edwards, joined in affirming the judgment dismissing that case for lack of subject matter jurisdiction and as barred by the applicable statute of limitations. The Kadic appellants prefer to view the dismissal as grounded on Rule 12(b)(6) in order to invoke the rule that in assessing claims under Rule 12(b)(6) the allegations of the complaint are to be taken as true.

Where subject matter jurisdiction is at issue, plaintiffs "bear the burden of proving that the case is properly in federal court . . .and [if] jurisdictional facts are challenged. . . support them by competent proof." United Food Local 919, supra, 30 F.3d at 301. Plaintiffs' jurisdictional claims depend on factual assertions that cannot feasibly be made the subject of proof in a federal court sitting in New York, e.g. proof of the relationship of the Serbian government to the Boanian-Serb faction militarily, politically, economically and in other respects over the past several years, as bearing on plaintiffs' claims that the Boenian Serbs should be held to be operating under color of the law of the regime in Serbia. Although there is thus considerable potential advantage to plaintiffs in having their claims weighed under Rule 12(b)(6), dismissal under Rule 12(b)(1) makes this unnecessary and inappropriate. At best consideration of plaintiffs' claims under Rule 12(b)(6) would simply postpone reckoning with the unmanageable and unprovable nature of much of plaintiffs' claims.

III. This Case Should Be Dismissed On The Basis Of The Many Nonjusticiable Political Questions It Presents

This case is one in which justiciability can and should be decided as a "threshold" question, in advance of consideration of subject matter jurisdiction. See Can v. U.S., 14 F.3d 160, n. 1 at 162 (2d Cir. 1994). Dismissal of the claims against defendant as nonjusticiable is warranted because the case necessarily will call upon the judiciary to address issues of foreign policy that are committed to the Executive Branch. The nonjusticiability of political questions is primarily a function of the constitutional separation of powers. Lamont v. Woods, 948 F.2d 825, 831 (2dCir. 1991).

This case seeks to have the Courts address claims arising from an ongoing, urgent situation involving warfare and wrenching tensions between competing factions in Europe in which the United States and other nations are actively participating in many ways. The situation is volatile. The possibility of renewed violence and of rapidly expanding war is very real.

The legal issues raised for judicial exploration and decision in this case are inextricably interwoven with subjects of immediate foreign policy consequence for the United States. Efforts to achieve peace may turn on the status of defendant's faction as a state, including the territory it may claim, whether it is a de lure, or de facto state, the nature of its sovereignty, whether part of a federation, or independent, the allocation of power and duties within the state among the military and civilian sectors and the existence of a rule of law. Questions raised here involving the military, politica1 and economic relations between defendant's faction and the Serbian government in Belgrade, or other nations, are of the most sensitive, uncertain and transitory political nature impacting directly on the ability of the Executive Branch to conduct foreign affairs. Among many other political guestions implicated here are whether sanctions that are now imposed should be continued by the United States unilaterally or together with allies, on defendant's faction, or on the Serbian government in some form, how they should be enforced and whether they be strengthened or lifted from time to time. Such foreign policy issues are inextricably interwoven with the inquiry which appellants seek into past and present political relatione among factions of the former Yugoslavia and beyond.

More fundamentally the relationship between defendant and representatives of the United States is an essential element of U.S. foreign policy. Successful negotiations and peace seeking efforts necessarily involve trust, confidence, the candid and oftentimes confidential exchange of ideas and information, and the making and keeping of commitments. These judicial actions cannot proceed without interfering with or jeopardizing a wide range of foreign policy activity involving defendant essential to achieving peace or to maintaining the pressure of sanctions or U.N. or U.S. peacekeeping supervision with or without defendant's cooperation.

The considerations which lead to nonjusticiability do not necessarily coincide with those which might warrant immunity now or in the short or long term future. Judge Leisure made the valuable point that the State Department may well at some time extend head-of-state immunity to defendant, which would require the dismissal of any action against him in U.S. courts. 866 F.Supp. at 737-38. Indeed if peace is achieved such recognition would probably be a consequence. The present absence of immunity cannot be taken as an indication of justiciability. The grant or withholding of immunity may itself be an instrument of foreign policy which the Executive Branch wields for its own purposes on its own responsibility and for reasons of far greater moment to foreign policy than the presence of defendant in the U.S. for purposes of this case. Then too the United States has a foreign policy responsibility to the peoples and nations of Europe who are more directly affected by the issues of war and peace that are at stake in Boania-Herzagovina that can be adversely affected by actions in U.S. courts in cases such as this.

The determination of justiciability is the responsibility of the Judicial Branch. Measured by the factors summarized in Baker v. Carr, 369 U.S. 186, 217 (1962), the circumstances of this case weigh heavily in favor of a finding of nonjusticiability. The questions in this case are political and nonjusticiable because they involve the authority of the President in the conduct of our foreign relations, and as in Curtiss-Wriaht, [299 U.S. 304 (1936)] the effect of this action, as far as we can tell, is "entirely external to the United States, and [falls] within the category of foreign affairs."

See Goldwater v. Carter, 444 U.S. 996, (1979)(Rehnquist, J. concurring joined by Chief Justice Burger and Justices Stewart and Stevens) involving conflict between the Executive and the Congress rather than the Executive and the Judiciary. So much more is involved and is at stake in the present cage than ordinary tort questions as to what in fact happened. Klinghoffer, supra, 937 F.2d at 49-50.

This case meets the Baker v. Carr criteria 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, much more so than in Tel-Oren, the possible consequences of judicial action are injurious to the national interest. Id. at 826-27.

A dismissal for nonjusticiability, like a dismissal for lack of subject matter jurisdiction, would be a dismissal without prejudice. There may be a place where plaintiffs' claims are justiciable .They are not justiciable here.

Conclusion

The judgments dismissing plaintiffs' claims should be affirmed.

Dated: March 17, 1995
New York. New York

Respectfully submitted,

Ramsey Clark
Lawrence W. Schilling
36 East 12th Street
New York, N.Y. 10003
(212) 475-3232

Attorneys for appellee
Radovan Karadzic



DIANA Homepage


127 Wall Street, New Haven, CT 06511.