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.
___________________________________)
Cases Page
Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980). 8, 13, 17
Klinghoffer v. S.N.C. Achille Lauro,
937 F.2d 44 t2d Cir. 1991). 6, 7
NCAA v. Tarkanian,
488 U.S. 179 (1988). 18
Sanchez-Espinosa v. Reagan,
770 F.2d 202 (D.C.Cir 1989). 17
Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C.Cir 1989). 17
U.S. v. AT&T,
551 F.2d 384 (DC Cir. 1976). 6
Verlinder B.V. v. Central Bank of Nigeria,
461 U.S. 481 (1962). 8
Statutes
Alien Tort Statute, 28 U.S.C. 1350. 9, 13, 14, 15, 16, 17
18 U.S.C. §1092 . 13
18 U.S.C. §2331. 14
18 U.S.C. §2334A. 14
18 U.S.C. 2340B. 13
28 U.S.C. §1606. 8
Torture Victims Protection Act,
note following 28 V.S.C. §1350. 13, 15, 17
Other Authorities
Boyd, Making Peace with the Guilty.
Foreign Affairs, September/October 1995. 3
Charter of the United Nations, Chapter VII. 12
Civil War Prisons, William B. Hesseltine,
Ohio State University Press, 1930. 12
Deferral Request of the international Tribunal for the
Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law
Committed in the Territory of the Former
Yugoslavia since 1991, May 16, 1995. 19
Geneva Conventions of 1949. 12,18
Genocide Conventions of 1949. 12, 13, 18
Hersh Lauterpacht, British Yearbook of
International Law (1953). 11
Report, Security Council Res. 808 (1993),
Article 10(2)(a). 12
David P. Stewart, The Torture Convention
and the Reception of International
Criminal Law Within the United States,
15 Nova L. Rev. 449 (Spring 1991). 15
The Trial of Major Henry Witz -- A
National Disgrace, Captain Glen W. LaForce,
Army Lawyer, June 1988, 3; Department of the
Army Pamplet, 27-50-186 (1988). 12
This supplemental brief is being filed on behalf of appellee with leave of the Court following the filing of a Statement of Interest of the United States and a Joint Supplemental Brief of appellants.
The United States has argued (l) that appellee was not immune from suit and service of process during his trips to the United Nations, citing only a letter from an official of the Department of State as authority (Statement of interest, IA, pp. 2-3): (2) that the District Court speculated inappropriately when it observed appellee may later become a head of state militating "against this Court exercising jurisdiction over the instant action" stating only "In cases such as these, the courts should assess the circumstances as they are." (Statement of Interest, IB, p. 3), and: (3) that a critical question "is that of forum non-conveniens," stressing the importance of considering it "where the parties and the conduct alleged in the complaints have as little contact with the United States as they have here." (Statement of Interest, III, p. 18).
These three issues of interest to the United States will be answered first because they are related and because individually -and collectively they compel dismissal of the cases without reaching the important substantial questions of law and foreign policy which should not be addressed because there is virtually no contact with the U.S. to support jurisdiction.
The only contact the cases have with the United States is the brief, highly restricted attendance of appellee at the United Nations headquarters to participate in peace negotiations at the urgent request of U.N. officials, the President of the United States, the Secretary General and other high U.N. officials. See Clark Affidavit, Doe JA 45-50. All of the parties including presumably the potentially thousands of the individuals in the class actions are aliens living in Bosnia. None have any presence or property in the U.S. All the alleged conduct occurred in the tragic and brutal wars in Bosnia. There is no evidence of any effort to sue in Bosnia, Croatia, Serbia, Yugoslavia, Switzerland, or elsewhere. There is no precedent in which a U.S. court has asserted jurisdiction in a case with "as little contact with the United States."
While appellants' counsel have protested their complaint is not a political statement, "This is a tort action," (Kadic Reply Brief , p. 17), they protest too much. No tort lawyer would ever file such a case because even if there was jurisdiction, justiciability and liability, there is no chance for any recovery. Not only does appellee have no assets in the U.S., or elsewhere outside Bosnia, and few there, all his assets, as the government has shown (Statement of Interest, p. 6-7, fn. 4) are blocked if they are in, or come within U.S. jurisdiction. A judgment for damages could not be enforced any more than the injunction against foreign wars which plaintiffs also sought.
Plaintiffs' complaints are political statements. Witness their press conferences, press releases and mailings. However sincere their belief in their cause, the federal courts are not the proper forum. Should Croatian and Bosnian Serb victims of the war file similar suits to publicize their plights? Should service of process be attempted on the President of Croatia and Bosnia if they attend peace negotiations in New York? If they successfully invoked sovereign immunity would this mean U.S. law rejects suits in its Courts against heads of states, however, tyrannical, but accepts suits against non recognized state actors even if they are struggling for freedom and Justice against tyranny?
General Charles G. Boyd, Deputy Commander in Chief, U.S. European Command from 1992 to July 1995, has written "All factions in the former Yugoslavia have pursued the same objective -- avoiding minority status in Yugoslavia or any successor state -- and all have used the tools most readily available to achieve that end (p. 24)... I have flown over Bosnian villages and seen the results, not of combat, but of ethnically based criminal violence, homes within a village "electively and systematically destroyed as the majority population -- Muslim, Serb or Croat -cleansed its community of now unwanted minorities (p. 26). . .the Serb population in Boania may be only about half of its pre-war total(p.29).
"Making Peace with the Guilty, Foreign Affairs, September/ October 1995, pp 22-39.
And what about the millions of victims of war in Rwanda, Liberia, Guatemala, El-Salvador, Cambodia, Kashwir and all the other countries torn by conflict at the end of this most violent century of mankind? Can U.S. courts be the bully pulpit, or the tort claims forum for all the world's misery if only some defendant can be tagged with one foot on U.S. soil? What would the meaning be to the poor of the planet to intrude U.S. cultural, social and economic values and legal standards into their lives a civilization away?
Where there are no parties, no property and no acts alleged in the U.S., our courts are interventionist, if not imperialist, when they assert jurisdiction. They will prove to be ineffective and consume resources essential to justice while promoting political statements which are incompatible with the role of the judiciary.
Plaintiffs have argued they cannot sue in Bosnia because the war has seriously impaired court functions, that they could not attend much less testify at a trial in Boanis without explanation, that the courts there are not likely to obtain personal jurisdiction over appellee in the foreseeable future and rhetorically that "This Court should not condemn these plaintiffs to return to the hands of their torturer to ask him for judicial relief." Joint Supplemental Brief of Appellants at 11 (emphasis in original). they do not claim to have exhausted judicial remedies in the courts of the place where their alleged injuries occurred, as required by the Torture Victims Protection Act, sec. 2(b), note following 28 U.S.C. §1350, and the criminal proceedings instituted against appellee and others by the Republic of Bosnia and Herzagovina that the International Tribunal has requested be deferred strongly indicates that there is a forum there for appellants' civil claims.
The fact foundations for the complaints, dispositive of issues of immunity and jurisdiction, are built on quicksand. The government argues that where parties are in control of territory and exercise authorities of a governmental character, they may in some circumstances be held accountable under international law, but the government does not consider Srpska an entity "that satisfies the criteria for statehood." Statement n.2 at 3. In the ongoing wars, control of territory is uncertain, undefined and determined by force. Witness the Croatian occupation of the huge Krajina area in forty eight hours this September forcing 150,000 Serbs to flee. It now appears probable as widely reported in the press that appellee will become, at least, the member of a triumvirate head of State in Bosnia in a matter of weeks.
In rejecting Judge Leisure's point that if the United States declared appellee a head of state, this would strip the Court of jurisdiction and is a consideration that "militates against this Court exercising jurisdiction over the instant action, "866 F.Supp. 734, 738, the United States argues: "In cases such as these, the courts should assess the circumstances as they are." Statement at 3. The United States cites no authority for this generalization, which is clearly overbroad. Cf: U.S. v, AT&T, 551 F.2d 38., 390 (D.c.cir. 1976) in which the Court of Appeals deferred decision, retained jurisdiction and remanded to the District Court: "The case is not now technically moot. However, our present handling of the case, for other reasons, has the advantage of avoiding any question of impending mootness. Whether a controversy will survive will depend on the negotiations we contemplate. It is an additional, if fortuitous advantage that under our decision, negotiations can be conducted not only by a new House but by a new President." Courts should not entertain meaningless litigation such as this in which neither parties, nor conduct on which claims are based have the slightest connection to the U.S., particularly where the parties are deeply enmeshed in the continuing struggle for change within their own country. Proper forums must be sought where justiciability is a possibility.
International forum shopping, litigation as a continuation of war and politics by other means and litigation as a form of protest cannot produce justice. Contests over tag, or alternative forms of service, such as service overseas by mail on the President of the PLO as was urged by plaintiffs to the District Court in Klinghoffer must be controlled by sound judicial discretion.
The cases should be dinmissed where they began, with service on a U.N. invitee participating in vital peace negotiations. It would be a sad obeervation of the 50th Anniversary of the United Nations not to accord an essential invitee participating in its most important function, peace negotiations, the immunity this Court has recognized for U.N. related activities. The U.S. Statement fails to mention the controlling precedent in this Circuit. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991) holds there is immunity from service of process and personal jurisdiction when such jurisdiction must be based on U.N. related activities of U.N. invitees. The U.N. could not effectively function without such protection. This immunity does not arise from laws relating to foreign sovereignty or beads of state. It is judicially created and surely applies to vital high level peace discussions at the United Nations as in this case.
The immunity for UN activities conferred by this Court in Klinghoffer is not a matter as to which the Executive Branch has authority. As was briefed by appellant below, see e.g. Doe JA at A205, see also A39, and on this appeal, appellee's brief at 8-15, courts in our system from earliest times have accorded immunity from process for persons entering that jurisdiction to attend court, to lobby legislative, executive, or administrative offices and even to participate in private arbitration proceedings. Proper judicial respect for the integrity and effectiveness of such important activities requires the opportunity for attendance without submitting to jurisdiction of courts for unrelated litigation.
The immunity of foreign sovereigns is defined generally in the Foreign Sovereign Immunity Act which establishes exceptions to sovereign immunity in defined commercial activities and property disputes of governments. Suits can be brought under such exceptions only where there is "some form of substantial contact with the United States " Verlinder B.V. v. Central Bank of Nigeria, 461 U.S. 481, 490 (1962). Where the exception to immunity applies, a "foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances" except as punitive damages and wrongful death. 28 U.S.C. §1606. Immunities are also provided for Member Nations and their officials in the U.N.-U.S. Headguarters Agreement.
It is unthinkable that U.S. courts would not enforce this historic principle for a party invited to participate in peace negotiations under U.N. auspices and certainly where the parties and alleged conduct have no other contact with the United States than attendance at the U.N.
The government's statement, unlike appellant's, recognizes that Filartiga "did not consider the conduct of non-state actors, "because Pena-Irala was a high ranking police official. Statement, p. 4. While concluding that the law of nations covers non-state conduct in some circumstances, the U.S. does not contend that appellee's conduct is covered. It calls only for a remand to the District Court to determine whether claims based on customary international law governing genocide, war crimes and crimes against humanity as alleged are cognizable under the Alien Tort Statute.
The U.S. cites several cases from history where civilians, or individuals serving a non-recognized state beve been held to answer for crimes under international law. Its very exceptions prove the rule that only state action, or acts under color of law can violate international humanitarian law.
The U.S. cites three precedents. All three involve criminal sanctions which must be distinguished from civil liability. All three precedents demonstrate that international humanitarian law applies only to state action.
The towering achievement of the Nuremberg principles was the rule holding individuals responsible for war crimes and crimes against humanity. The U.S. confuses individual responsibility with non-state actors. The individuals to be charged at Nuremberg were those who acted for the state in the commission of crimes against peace, war crimes and crimes against humanity--
Any suggestion that private industrialists who committed purely business offenses, or economic crimes like profiteering, or frauds against the government coch as the quality of munitions supplied, or the production of goods unrelated to Nazi government war crimes were charged at Nuremberg is simply not correct. The conduct of the industrialists charged was an essential and integral part of the government's crimes. Nothing in the history of the Nuremberg and Tokyo Tribunals suggests international law addresses private conduct unrelated to state conduct.
The U.S. discussion of the trial of Major Henry Wirz, a Confederate officer at the infamous Andersonville prison camp in Georgia, further exposes the error of the U.S. claim that state action is not always an element in establiahing crimes under the law of nations. Over some protest,including the New York Tribune, Major Wirz was tried by a military commission rather than by civil courts of Georgia, or Article III federal courts. He was originally charged with conspiring witb Jefferson Davis, Robert E. Lee, and others to injure and cause the deaths of U.S. prisoners of war. Secretary of War Stanton was outraged when he learned of the inclusion of Lee in the charge and the first commission was dissolved. A second commission was immediately convened. Wirz was charged with the conspiracy with others including Davis, but not Lee, and with murder of nine unnamed Union prisoners "in violation of the laws and customs of war."
There were no treaties dealing with the laws of war and no customary international law. The U.S. had employed a German immigrant jurist named Franz Lieber to prepare a list of basic common principles of conduct in land war from European experience early in the Civil War which proved useful in avoiding incidents which could create irreconcilable division in the future. But there was no existing law of nations setting forth rules for the conduct of war. As Hersh Lauterpacht wrote nearly ninety years later "If international law is, in some ways, at the vanishingpoint of law, the law of war is, perhaps even more conspicuously, at the vanishing-point of international law.. British Yearbook of International Law (1953), 382.
Witz was convicted and only months after his arrest hanged in Washington, November 10, 1865 and buried in the prison yard next to the Lincoln assassins. He was the only officer punished for conduct related to prisons in the Civil War.
The U.S. vigorously resisted any recognition of the Confederate States, greatly complicating even prisoner exchanges, though the Confederacy controlled territory and governmental authority. In the domestic insurrection the U.S. claimed occurred, there were state and federal laws and courts available for prosecutions. The use of a military commission and charges of common crimes called the laws and customs of war were a response to outrage and an expression of military power. No charges were brought against officers at the U.S. prison at Elmira, or Secretary Stanton for ordering retaliation against Confederate prisoners for mistreatment of U.S. prisoners. See, Civil War Prisons, William B. Hesseltine, Ohio State Vniversity Press, 1930.
The Wirz case is sad history and bad law, not a precedent for any worthy issue, except the excesses of martial law. See The Trial of Major Henry Wirz -- A National Disgrace, Captain Glen W. LaForce, Army Lawyer, June 1988, 3; Department of the Army Pamphlet, 27-50-186 (1988).
The two ad hoc International Tribunals crested by the U.N. Security Council under authority claimed from Chapter VII of the Charter of the United Nations to hear allegations of war crimes in Rwanda and former Yugoslavia are too recent and inconclusive to affect customary international law. Both address violations of international humanitarian law and are concerned with state actors, as are the Genocide Convention and the Geneva Conventions of 1949. Both tribunals clearly have no jurisdiction over ordinary crime. See, e.g., Report, Security Council Res. 808 (1993), Article 10(2)(a).
Without a determination that alleged conduct is state action, or acts committed in concert with, or to aid and abet state action, there can be no criminal liability under customary international law, or existing treaty.
Civil liability has not been created under customary or humanitarian international law which address crimes by state actors. Treaties have prohibited, or narrowly limited reliance on their provisions in civil actions.
The federal statutes implementing the Torture Convention, 18 V.S.C. sec. 2340-2340B, erected in 1994, and the Genocide Convention, 18 U.S.C. sec. 1091-92, enacted in 1988, "pacifically state its provisions should not be construed as creating any rights enforceable in civil proceedings, see sec. 23408 and sec. 1092, quoted in appellee's brief at 28. The Torture Victims Prevention Act of 1991 which codifies Filartiga reguires exhaustion of remedies in the country where the alleged state actions occurred. The Geneva Conventions of 1949 do not create tort liability. There is thus no basis in international law to sue in the U.S. courts for injuries and deaths alleged to have been inflicted in former Yugoslavia by and against people who have always lived there in the absence of state action and U.S. contacts.
The statement of the United States recognizes that the treaties relied on by appellants to create claim. actionable under the Alien Tort Statute or other jurisdictional provisions fail to do so because the treaties are not self-executing, pointing to enabling legislation and legislative history that specifically preclude the exercise of jurisdiction over such civil claims in U.S. Courts, U.S. Statement at 15-18; see also appellee's brief at 27-30, which also references the legislation against international terrorism, 18 U.S.C. §§2331-2334A, as a significant measure of Congress' determination to guard against the potential flood of actions by aliens against aliens in U.S. courts. Appellants persist in their expansive reading of the Alien Tort Statute and their contention that the treaties give rise to civil claims that are actionable on their own in U.S. Courts. Joint Supplemental Brief, pp. 7-9.
Neither the United States nor appellants give full effect to the consequences of the treaties being not self-executing and to the recently expressed and consistent Congressional intent to limit civil actions cognizable in U.S. Courts, arising outside the United States, particularly to state actors and in cases where neither the parties nor the subject matter have any nexus with the United States.
Although the United States recognizes that the international treaties relied on by appellants do not create claims actionable under the Alien Tort Statute, it obliquely suggests the same result by stating that even though the treaties are not self- executing they "are probative of the content of the law of nations." Statement n. 9 at 16.
While this suggestion may have some validity in other contexts it is an unsound basis for interpreting and applying the Alien Tort Statute. The Alien Tort Statute should remain responsive to contemporary developments in the law of nations, but it must be responsive to subsequent acts of Congress and to contemporary, consistently expressed restrictive Congressional actions expressly barring civil actions cognizable in the courts of the United States while declaring the treaties to be non self executing. It makes no sense for Congress to close the doors of the Courts of the United States to actions based directly upon the treaties only to permit the treaties to be considered as part of the law of nations under the Alien Tort Statute. She sole exception is the Torture Victim Protection Act, which allows an action in U.S. Courts by an alien for torture abroad, but only in cases of state action and if remedies have been exhausted in the place where the conduct giving rise to the claim occurred. This statute is inapplicable in tbe present case, as the United States has tacitly acknowledged see Statement, n 3 at 5-6. Inapplicability of the TVPA flows from the position of the U.S. in not recognizing the Republic of Srpaka as a state, not treating that entity as one that satisfies tbe criteria for statehood, Statement n. 2 at 3, and not recognizing appellee as a head of state, id. at 3, as well as from the failure of appellants to exhaust their remedies elsewhere.
Treaties such as those against torture and genocide represent an international effort to allocate responsibility among nations for the enforcement of the kinds of criminal international law appellants are seeking to use here as the basis for their civil actions. See e.g. the detailed and knowledgeable analysis in David P. Stewart, The Torture Convention and the Reception of International Criminal Law Within the United States, 15 Nova L. Rev. 449 (Spring 1991). Mr. Stewart, an assistant legal advisor in the State Department, was involved in the Executive Branch's efforts to obtain Senate advice and consent for the Torture Convention. For the Courts of the United States to assume jurisdiction over this civil case would be inconsistent with and destructive of the interlocking law enforcement obligations that the treaties contemplate over torture, genocide and other forms of gross misconduct.
The United States is correct in its observation, U.S. Statement at 14-15, that if the District Court is mistaken in basing lack of jurisdiction under the Alien Tort Statute on the fact that appellee is a non-state actor, tbe District Court on remand must analyze and measure the allegations of the complaint against the law of nations to determine whether subject matter jurisdiction exists. The District Court must assess whether the allegations viewed in light of the law of nations encompass individual civil as well as criminal responsibility in the case of a person such as appellant who among other things is not alleged and cannot be shown to have participated in any acts against persons in his actual physical custody and control.
The U.S. Statement does not address whether other nations have claimed jurisdiction for their courts to adjudicate tort claims brought by aliens against aliens for acts occurring in the aliens' country without the presence of the parties, or their properties, based on tag service of a transient alien. If U.S. courts assert such jurisdiction, other nations would have equal claim. The burden on international relations and travel could be substantial with no demonstrable contribution to dispute resolution, or justice.
The U.S. Statement continues its confusion of individual responsibility with state action in its analysis of the precedents relied on by thc District Court. Sanchez-Espinosa v. Reagan, 770 F.2d 202 (D.C.Cir 1985), written for a unanimous court by Judge, now Justice Scalia, with Judge, now Justice Ginsberg on the panel is direct authority that as of that date, no treaty and no principle of customary international law reaches private, non-State conduct. Judge Scalia cited the opinions of both Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 at 791-96 and 807 (D.C.Cir 1989). Sanchez-Espinosa v. Reagan, 770 F.2d at 207.
Filartiga is carefully limited to a state actor. If Pena- Irala had been Jack the Ripper instead of a former Inspector General of Police in Paraguay, and committed the identical acts alleged, be could not have been sued here for "official torture." The reason is international law deals with nations, or at the very least persons acting under color of their authority. It does not intervene in domestic activities unless state conduct violates international norms.
The Torture Victims Protection Act applies only to acts "under actual or apparent authority, or color of law, of any foreign nation." TVPA, Sec. 2(a). It also requires a plaintiff to exhaust remedies in the nation where the conduct alleged occurred. id. Sec. 2(b). By their very nature, the conduct addressed in the Geneva Conventions and the Genocide Convention is the conduct of state actors.
The reference in the legislative history of the TVPA to 42 U.S.C. 1983 for aid in the interpretation of the meaning of its usc of the phrase "color of law" is instructive. As with al1 federal civil rights legislation, the Congress is limited to its delegated powers, by the 10th Amendment to the Constitution and by considerations of federalism. Congress necessarily limited the reach of §1983 to state action, or action under color of law. This includes concerted action and acts by symbiotic relationship between the state and private individuals.
Purely private conduct, no matter how wrongful, is not protected by §1983- See, NCAA v. Tarkanian, 488 U.S. 179, 191 (1988). The assumption is that the state itself will protect rights in such cases.
This same assumption supplies as to non-state acts within foreign nations. Those are domestic matters for the nation itself to control. It is only when the state, or persons acting in concert with the state, commits prohibited acts that violations arise under international law. Any other rule would inject the international community into the domestic affairs of the individual nations.
The U.S. Statement concedes "there might be instances" in cases like this "that might raise a political question." Without further comment it concludes "this is not one of them."
It is difficult to imagine what that cese might be which raises a political guestion if this one does not. In addition to the range of political and foreign policy guestions inextricably intertwined with the issues in this case set forth in appellee's brief, pp. 31-35, appellee would point to the daily, even hourly, developments in the diplomatic and political field that might be affected by this litigation. A cease fire in Bosnia, negotiated under the leadership of the U.S. will hopefully take place in a matter of days. Negotiations at a place yet to be publicly identified to resolve geographic and other guestions for a final settlement of the conflict are sebeduled to begin as this brief is filed. At this time it is contemplated that the final agreement will include a Republic of Srpaka as pert of Boania with appellee one of the three presidents.
The International Tribunal has reguested Boania-Herzegovina, which has agreed, to abate all domestic criminal proceedings charging war crimes pending the completion of its hearings expressing concern for the effect of simultaneous proceedings on investigations and the safety and availability of witnesses. See, Deferral Request, May 16, l995, contained as item 2 of the aupplementary submission herein by plaintiffs-appellants.
U.S. courts cannot do less. This action must be dismissed.
The judgments below dismissing plaintiffs' claims should be affirmed.