Doe v. Karadzic--Appellee's Brief: Part 2


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 participation 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 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


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