Project DIANA : Doe v. Karadzic--Appellee's Briefs: Part 3
Doe v. Karadzic--Appellee's Briefs: Part 3

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, id 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 (11th 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
"(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 ' 1091(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 jure, 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-Wright, [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.


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

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