JOINT SUPPLEMENTAL BRIEF OF APPELLANTS IN RESPONSE TO STATEMENT OF INTEREST OF THE UNITED STATES 94-9069

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

JANE DOE, ET AL.

    Plaintiffs-Appellants,

v.

RADOVAN KARADZIC

    Defendant-Appellee.

------------------------------

S. KADIC, ET AL.

    Plaintiffs-Appellants,

v.

RADOVAN KARADZIC

    Defendant-Appellee.

-----------------------------

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

JOINT SUPPLEMENTAL BRIEF OF APPELLANTS IN RESPONSE TO
STATEMENT OF INTEREST OF THE UNITED STATES

CATHARINE A. MACKINNON
625 South State Street
Ann Arbor, MI  48109
313-747-3595

MARTHA F. DAVIS
YOLANDA WU
DEBORAH A. ELLIS
NOW Legal Defense and Education Fund
99 Hudson Street
New York, NY  10013
212-925-6635

Counsel for Kadic Plaintiffs

BETH STEPHENS
JENNIFER M. GREEN
PETER WEISS
JULES LOBEL
MICHAEL RATNER
Center for Constitutional Rights
666 Broadway, 7th floor
New York, NY  10012
212-614-6464

HAROLD HONGJU KOH
RONALD C. SLYE
Allard K. Lowenstein
International Human Rights Law Clinic
127 Wall Street
New Haven, CT  06520
203-432-4932

RHONDA COPELON
CELINA ROMANY
International Women's Human Rights Law Clinic
CUNY Law School
65-21 Main Street
Flushing, NY  11367
718-575-4329

JUDITH LEVIN
International League for Human Rights
432 Park Avenue South
New York, NY  10016
212-684-1221

Counsel for Doe Plaintiffs

On the Brief:

ROBERT AHDIEH
NOAH NOVOGRODSKY
ARIADNE STAPLES
ADAM STEINMAN
ROBERT TSAI
ELIZABETH VAN SCHAACK
Allard K. Lowenstein International
  Human Rights Clinic
127 Wall Street
New Haven, CT  06511
203-432-4808

TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress  Annex to G.A.
Res. 48/263 (July 28, 1994); reprinted in 33 I.L.M.
1309 (1994) 
Restatement (Third) of the Foreign Relations Law
of the United States (1987) 
Statement of Interest of the United States

I. THE U.S. GOVERNMENT'S STATEMENT OF INTEREST ENTIRELY CONFIRMS KARADZIC'S LIABILITY FOR ACTS OF GENOCIDE, WAR CRIMES, AND CRIMES AGAINST HUMANITY

This brief, filed jointly by the Doe and Kadic plaintiffs-appellants, responds to the Statement of Interest of the United States filed on September 13, 1995 ("U.S. Statement"). In urging this Court to reverse the District Court's judgment, the United States Government supports appellants' position in each of the following particulars:

• A. Defendant is Not Immune from Suit and Service of Process: "[T]he Court should . . . reject the argument by defendant/appellee Radovan Karadzic that he was immune from suit and service of process while he was in the United States." U.S. Statement at 1.
• B. The Suit is Justiciable: "There is . . . no merit to the suggestion by the district court that the justiciability of these cases is in doubt because of the theoretical possibility that Karadzic might some day be recognized by the Executive Branch as a head of state. And, contrary to Karadzic's argument, dismissal of these cases at this stage under the 'political question' doctrine is not warranted." Id.[1]
• C. "[T]he district court erred in ruling that plaintiffs cannot pursue these cases under the Alien Tort Statute . . . because Karadzic is not a 'state actor.'" Id. at 2.
  • 1. Filartiga is the governing precedent. "[T]his Court's decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) [is] the law of this Circuit and the starting point for the necessary analysis." Id. at 2. Under Filartiga, "an alien may pursue an action under the Alien Tort Statute, even for transitory tort claims between individuals, when a federal court has personal jurisdiction and the claim involves a violation of universally recognized norms of international law, and hence 'the law of nations.'" Id. at 4.
  • 2. Karadzic is personally amenable to suit: The wording and history of the statute further make it "clear that the Alien Tort Statute may encompass violations of customary international law committed by non-state actors." Id. at 11. In addition, "the law of nations [has previously been applied] to a non-state actor who was serving as an official in a belligerent regime during a civil war." Id. at 10.[2]
    Furthermore, lack of recognition by the United States of the Republic of Srpska as a state is no barrier to this suit. "[W]hen the perpetrators of human rights violations are, as here, in control of territory and exercise authorities of a governmental character, they may be held accountable under international law even though the regime on whose behalf they act is not recognized and does not satisfy the requirements for independent statehood." Id. at 5-6 n.3.
  • 3. Karadzic's acts are fully actionable: "[T]he law of nations can indeed be violated by non-state acts of genocide, war crimes, and crimes against humanity," including the widespread, systematic, and genocidal rape for which defendant is responsible. Id. at 14. Moreover, defendant's acts are actionable under the Alien Tort Statute because they violate the Convention Against Torture, the Convention on the Prevention and Punishment of Genocide, and the Geneva Conventions, which, at a minimum, "are probative of the content of the law of nations." Id. at 16 n.9.[3]

II. THIS COURT NEED NOT DEFER TO ALL VIEWS SUBMITTED IN THE U.S. GOVERNMENT'S STATEMENT OF INTEREST

The joint submission of the Solicitor General and the Legal Adviser of the State Department wholly confirms the correctness of appellants' position. This Court need not defer, however, to other portions of the Government's Statement that either raise issues that this Court need not decide, or suggest remand on issues that this Court should properly decide.

• A. Service of Process: The Government takes no position on whether a remand is warranted on this issue. Nevertheless, its Statement makes clear that this Court now has sufficient information to rule definitively that defendant Karadzic was fully subject to service, enjoyed no immunity from service, and was properly served with process in this case.
• B. Scope of the Alien Tort Statute: At various points, the Government suggests that decisions regarding subject matter jurisdiction should be made by the district court on remand. Id. at 2, 14-15. Yet these are pure issues of law, which have been fully briefed before this Court. In Filartiga itself, which the Government strongly urges this Court to follow, the Second Circuit panel remanded the case to the district court only after clearly holding that "federal jurisdiction may properly be exercised over the [plaintiffs'] claim." 630 F.2d at 889.[4] Given that the district court has already ruled erroneously on subject matter jurisdiction, this Court should pursue the same course here and rule directly that subject matter jurisdiction over plaintiffs' claims exists. The Solicitor General's sugggestion that the Court simply reverse and remand for "further appropriate proceedings" in the district court would leave the lower court too much discretion to deny subject matter jurisdiction once again, exacerbating delay and opening the door to a whole new round of motions and appeals.
  The Government also offers the unwise advisory view that this Court should not construe the Alien Tort Statute to reach certain international norms regarding use of force, the law of the sea, ocean dumping, and the like. U.S. Statement at 15. Yet in Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421, 423-25 (2d Cir. 1987) (Feinberg, C.J.), rev'd on other grounds, 488 U.S. 428 (1989), this Court previously held that claims arising from tortious violations of the Geneva Convention on the High Seas and the Law of the Sea Convention of 1982 are in fact actionable under the Alien Tort Statute.[5] This Court should decline the Government's invitation to embed into dicta propositions of law that past precedents of this Court have already rejected.
• C. Torture Victim Protection Act ("TVPA"): Although the Government takes no position on the applicability of the TVPA, U.S. Statement at 5-6 n.3, its reasoning fully supports our claim that Karadzic may be held liable under the TVPA. As another court in this Circuit has noted, the TVPA was simply a codification of the specific Alien Tort Statute action for torture, recognized in Filartiga. LaFontant v. Aristide, 844 F. Supp. 128, 138 (E.D.N.Y. 1994) (Weinstein, J.). The Government's recognition that Alien Tort Statute jurisdiction is not "limited to torts committed only by state officials," U.S. Statement at 11, equally supports a finding that Karadzic's acts of torture and summary execution were committed "under actual or apparent authority or color of law of [a] foreign nation" sufficient to trigger liability under the TVPA.
  As our complaints and briefs note, Karadzic acted under the color of law of the de facto regime of Srpska. Doe Br. at 16-17; Kadic Br. at 39-49. Both the law of this Circuit and international law define a de facto regime as "'an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.'" National Petrochemical Co. v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir. 1988) (quoting Restatement (Third) of the Foreign Relations Law of the United States Section 201 (1987)), cert. denied, 489 U.S. 1081 (1989); see also Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d Cir. 1991). The Government acknowledges that Karadzic's regime is "in control of territory and exercise[s] authorities of a governmental character." U.S. Statement at 5 n.3. Thus, "when the perpetrators of human rights violations are, as here, in control of territory and exercise authorities of a governmental character, they may be held accountable under international law." Id. at 5 n.3, 11-12.
  For this Court to hold differently would have broad legal consequences. In addition to the TVPA, numerous federal statutes prohibit or regulate various kinds of transactions with "foreign nations." See, e.g., 15 U.S.C. Section 12(a) (antitrust measure defining "Commerce" as trade between any territory of the United States and any "State, Territory, or foreign nation"); 15 U.S.C. Section 61 (regulating trade involving the export of goods to "any foreign nation"); 18 U.S.C. Section 793(a) (prohibiting the transmission of defense information to "any foreign nation"); 18 U.S.C. Section 1030(a) (prohibiting the acquisition of computer data for the purpose of providing an "advantage [to] any foreign nation"); 42 U.S.C. Section 2274(b) (prohibiting the transmission of restricted data to "any foreign nation"). This Court could carve away or endanger large chunks of previously exercised federal jurisdiction were it now to rule that the statutory term "foreign nation" does not apply to unrecognized de facto states, such as North Korea, Cuba, or Srpska.
  Even assuming, arguendo, that Karadzic's own regime would not be considered a "foreign nation" under the TVPA, he was still clearly acting under color of law of the rump government of Yugoslavia. See Doe Br. at 24-27; Kadic Br. at 45-49. Viewed in light of relevant precedent, Karadzic's actions in concert with the rump government of Yugoslavia or under its apparent or actual authority are plainly actionable under the TVPA.[6] The Yugoslav government's continuing military, economic, and political support for the Bosnian Serb forces and its active role in Karadzic's horrific campaign of human rights abuses create a clear nexus with a foreign nation sufficient to make Karadzic liable under the TVPA.
  
• D. Self-Executing Treaties: While claiming that its views on the subject warrant special deference, U.S. Statement at 16-17 n.10, the Government argues that appellants may not proceed directly under the Geneva, Genocide, and Torture Conventions because those treaties are not self-executing. Id. at 15-18. In fact, the courts have consistently held that whether a treaty is self-executing is not a matter for blind judicial deference to the executive branch, but rather, "an issue for judicial interpretation, and courts [must] consider several factors in discerning the intent of the parties to the agreement: (1) the language and purposes of the agreement as a whole; (2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the agreement; (4) the availability and feasibility of alternative enforcement mechanisms; (5) the implications of permitting a private right of action; and (6) the capability of the judiciary to resolve the dispute."
  Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985) (citation omitted); accord, People of Saipan v. U.S. Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974) ("The extent to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined in each case by reference to many contextual factors: the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution."), cert. denied, 420 U.S. 1003 (1975). This Court need not pass on the difficult question whether, under this test, the particular provisions of the cited conventions are or are not self-executing. It need only hold, as the Government urges and the Filartiga Court held, that appellants have alleged "torts in violation of the law of nations" sufficient to trigger federal jurisdiction under 28 U.S.C. Section 1350.[7]
• E. Forum Non Conveniens: While expressly "tak[ing] no position on whether dismissal on [forum non conveniens grounds] would be appropriate in these cases," the Government nevertheless stresses "the general importance of considering the forum non conveniens doctrine in cases such as these." U.S. Statement at 18. On this issue, the Court need not defer to the views of the U.S. Government, which is not a party to this case, particularly when the defendant himself has not asserted forum non conveniens as a defense. Nor does the Government offer any reason why, on this issue, this Court should not again follow Filartiga, which did "not reach the . . . question of forum non conveniens, since it was not considered below." Filartiga, 630 F.2d at 880 n.6, 890.
  Should the Court choose to address this issue, the record clearly indicates that dismissal on grounds of forum non conveniens is foreclosed. The clearly established law of the Supreme Court and this Circuit directs that ça plaintiffçs choice of forum should rarely be disturbed.ç Piper Aircraft v. Reyno, 454 U.S. 235, 241 (1981). For a case to be dismissed on forum non conveniens, the defendant must carry a heavy burden of showing that a jurisdictionally and practically çadequate alternative" forum exists. Id. at 254 n.22; see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947); Blanco v. Banco Industrial, 997 F.2d 974, 980 (2d Cir. 1993); In re Union Carbide, 809 F.2d 195, 198 (2d Cir. 1987); Calavo Growers v. Generali Belgium, 632 F.2d 963, 968 (2d Cir. 1980), cert. denied, 449 U.S. 1084 (1981). As pleaded by plaintiffs, Bosnia- Herzegovina remains in a state of intense warfare. Much of its territory is under defendant's control. Plaintiffs are refugees whom defendant has forcibly ejected from their homes and who could not attend--much less testify at--a trial of their claims in Bosnia.[8] The war has seriously impaired the functioning of an effective, independent judicial system in the region. The courts of the government of Bosnia-Herzogovina will not likely obtain personal jurisdiction over defendant Karadzic in the foreseeable future. The International Criminal Tribunal for the Former Yugoslavia has criminal, not civil jurisdiction; lacks custody over Karadzic; and cannot, in any event, provide the injunctive, declaratory, and compensatory relief sought by the plaintiffs and authorized by the Alien Tort Statute and the Torture Victim Protection Act. This Court should not condemn these plaintiffs to return to the hands of their torturer to ask him for judicial relief. If this Court addresses this issue, as a matter of law, the Court should rule that forum non conveniens dismissal is inappropriate because no alternative forum exists.[9]
• F. Treasury Department Regulations: Finally, for similar reasons, it would be entirely premature for this Court to address the Government's speculations regarding the scope of various Executive Orders and Treasury Department regulations blocking various forms of Bosnian Serb property. U.S. Statement at 6-7, n.4. There will be ample time for the district court to explore the enforceability of any judgment against Karadzic if and when the district court grants judgment, considering the government regulations in force at that time.

III. CONCLUSION

For the foregoing reasons, and those set forth in our earlier briefs, the judgment of the district court should be reversed and the case remanded for trial on the merits of plaintiffs' claims.

Respectfully Submitted,

CATHARINE A. MACKINNON
625 South State Street
Ann Arbor, MI 48109
313-747-3595

MARTHA F. DAVIS
YOLANDA WU
DEBORAH A. ELLIS
NOW Legal Defense and Education Fund
99 Hudson Street
New York, NY 10013
212-925-6635

Counsel for Kadic Plaintiffs

BETH STEPHENS
JENNIFER M. GREEN
PETER WEISS
JULES LOBEL
MICHAEL RATNER
Center for Constitutional Rights
666 Broadway, 7th floor
New York, NY 10012
212-614-6464

HAROLD HONGJU KOH
RONALD C. SLYE
Allard K. Lowenstein
International Human Rights Law Clinic
127 Wall Street
New Haven, CT 06520
203-432-4932

RHONDA COPELON
CELINA ROMANY
International Women's Human Rights Law Clinic
CUNY Law School
65-21 Main Street
Flushing, NY 11367
718-575-4329

JUDITH LEVIN
International League for Human Rights
432 Park Avenue South
New York, NY 10016
212-684-1221
Counsel for Doe Plaintiffs
On the Brief:
ROBERT AHDIEH
NOAH NOVOGRODSKY
ARIADNE STAPLES
ADAM STEINMAN
ROBERT TSAI
ELIZABETH VAN SCHAACK
Allard K. Lowenstein International
Human Rights Clinic[10]
127 Wall Street
New Haven, CT 06511
203-432-4808

Endnotes

1. The Solicitor General suggests no foreign policy or political reason why this Court should decline to hear these cases.

2. The conflict in the former Yugoslavia is not a civil war. However, the extensive historical precedent for applying the law of nations to a non-state actor in the context of a civil war allays any concerns over whether Karadzic is liable for his actions; this body of law applies whether the hostilities are regarded as international or internal.

3. The Government's Statement confirms that the D.C. Circuit's opinions in Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), and Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985), do not apply to bar suit against "the allegations of genocide, war crimes, and crimes against humanity pled here," which "are of a substantially different nature" from the offenses at issue in those cases. Id. at 13.

4. See also Filartiga, 630 F.2d at 880 (ruling directly on "a threshold question on the jurisdictional issue . . . [:] whether the conduct alleged violates the law of nations").

5. The Supreme Court later reversed on other grounds--namely that plaintiffs were required to proceed against Argentina exclusively under the Foreign Sovereign Immunities Act--but did not disturb this Court's ruling on the actionability of the violations alleged.

6. The TVPA s legislative history suggests that  1983 is a useful guide in understanding the TVPA. TVPA House Report, H.R. Rep. No. 367, 102d Cong., 1st Sess. 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87 ("Courts should look to 42 U.S.C. § 1983 in construing 'color of law and agency law in construing 'actual or apparent authority.'"). Under 42 U.S.C. § 1983, it has long been held that action taken by private parties in concert with state actors or with significant state aid is actionable. Lugar v. Edmondson Oil, 457 U.S. 922, 937 (1982); Adickes v. S.H. Kress 111 reporters' note 5 (emphasis added). The direct actionability of other provisions of the Geneva Conventions, as well as the Genocide and Torture Conventions, have not been passed upon, and none of these, to our knowledge, has been ruled on by this Circuit.

8. Forum non conveniens dismissal has been routinely denied as a matter of law when "conditions in the foreign forum . . unlikely to obtain basic justice therein." Borralho v. Keydril Co., 696 F.2d 379, 393-94 (5th Cir. 1983). In an analogous decision affirmed by this Court, Rasoulzadeh v. Associated Press, 574 F. Supp. 854, 861 (S.D.N.Y. 1983), aff'd, 767 F.2d 908 (2d Cir. 1985), Judge Haight stated:

"I have no confidence whatsoever in the plaintiffs' ability to obtain justice at the hands of the courts administered by Iranian mullahs. On the contrary, I consider that if the plaintiffs returned to Iran to prosecute this claim, they would probably be shot. There is, in these circumstances, no substance to [defendant's] motion based upon forum non conveniens."

The same lack of substance exists here. Because there is no possibility of an alternate forum, no issue of forum non conveniens properly arises.

9. Nothing in the present U.S. Government regulations blocking access to certain Bosnian Serb property bars the claims for equitable relief asserted by the Kadic plaintiffs.

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