Amicus Curiae Brief — Karadzic v. Kadic

Court, U.S.

5 No. 95-1599 ayaa

MAY 13 1996

IN THE es ianes

Supreme Court of the itttey-States

OCTOBER TERM, 1995

-_

RADOVAN KARADZIC,

Petitioner.

-—vVS.—

S. KADIC, JANE DOE I, and JANE DOE II, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE PROFESSORS DAVID J. BEDERMAN,

ERWIN CHEMERINSKY, WILLIAM DODGE,

MARTHA FIELD, BURKE MARSHALL, JUDITH RESNIK,

DAVID L. SHAPIRO, AND WILLIAM W. VAN ALSTYNE

IN SUPPORT OF RESPONDENTS

Donald Francis Donovan

(Counsel of Record)

Barton Legum

Diane Hester

Natalie R. Williams

Thomas H. Prochnow

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, New York 10022

(212) 909-6000

(Counsel continued on inside cover)

“\\3

Ce

David J. Bederman

1722 North Decatur Road

Atlanta, Georgia 30322

Erwin Chemerinsky

699 Exposition Boulevard

Los Angeles, California 90089

William Dodge

200 McAllister Street

San Francisco, California 94102

‘Martha Field

1575 Massachusetts Avenue

Cambridge, Massachusetts 02138

Burke Marshall

127 Wall Street

New Haven, Connecticut 06510

Judith Resnik

699 Exposition Boulevard

Los Angeles, California 90089

David L. Shapiro

1575 Massachusetts Avenue

Cambridge, Massachusetts 02138

William W. Van Alstyne

Science Drive and Towerview Road

Box 90362

Durham, North Carolina 27708

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

Rees Ge ET 8s A a ok ns Sah han au teens i

ee ee Se a Cea Saw cles ii

STATEMENT OF INTEREST ._...............00. l

Ree I RS. Se ce eu chek a wc ucen l

ee et ree 4 Sk on oe 2 ure 3

l. PLAINTIFFS’ ALTERNATIVE RELIANCE

ON THE TVPA MAKES REVIEW OF

THIS CASE AT THIS STAGE PREMATURE .......... 4

Il. PETITIONER HAS IDENTIFIED NO ISSUE

UNDER THE ATCA WARRANTING REVIEW ........ 7

A. The Federal Courts Have

Consistently Applied the ATCA ......... 7

B. The Federal Courts Are in Accord

On The State Action Issues Petitioner

VE ne ae 13

Ill. THE ATCA AND ITS APPLICATION BELOW COMPORT

WITH ESTABLISHED PRINCIPLES OF FEDERAL

I Cia wie tame bere ale Seb «s 16

Soo Be re 6 eer re a ane 20

ii

TABLE OF AUTHORITIES

Cases

Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) .. 8, Il

Amerada Hess Shipping Corp. v. Argentine Republic,

830 F.2d 421 (2d Cir. 1987), rev'd on other grounds,

468 U.S. G2R (EF vk vas cen ken s Be Pine os 10

Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668

S.BDA.Y. EG) os s0 tk eer ee eee eae eee. 12

Argentine Republic v. Amerada-Hess Shipping Corp.,

406 U5. Gae CRG aioe ew eas ce kh Ree han 19

Arkansas v. Tennessee, 246 U.S. 158 (1918) .......... 19

Banco Nacional de Cuba v. Sabbatino,

376 U.S. SUR AI. ks Sa ee et eas a os 19

In re Barcelona Traction, Light and Power Company

(Belgium v. Spain), 1970 I.C.J. Rep.3 ..........4.4. 18

Commodity Futures Trading Comm’n v. Nahas,

ee Fopfitse Bo | peer ee ee eee 19

Connecticut National Bank v. Germain,

SGS U.S. Fee Tee ane eres Pe ee 5 e's ae 13

Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985),

Cart. Genied, 47S UB. TERS Ce hie were ae EN 6 ae 18

iii

Dow v. Johnson, 100 U.S. 158 (1879) .............. 19

Fildrtiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980) 1. 10, 11

13

Forti v. Suarez-Mason,

672 F. Supp. 1531 (N.D. Cal. 1987)......... 8, 11, 13

Forti v. Suarez-Mason,

694 F. Supp. 707 (N.D. Cal. 1988) ........... 12, 13

FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson.

636 F.2d 1300 (D.C. Cir. 1980) ........... xa es 19

Guinto v. Marcos, 654 F. Supp. 276 (S.D. Cal. oe weve

Hamid v. Price Waterhouse, 51 F.3d 1411 (9th Cir. 1995),

cert. denied, 116 S.Ct. 709 (1996) ............... 12

Hartford Fire Insurance Co. v. California,

I I Ue cic cic o's vec ee 17, 19

Hilao v. Estate of Marcos, 25 F.3d 1467 (9th Cir. 1994),

cert. denied, 115 S. Ct. 934 (1996) ......... 8, 10, 11

Hilton v. Guyot, 159 U.S. 113 (1895) .............. 19

Holder v. Hall, 114 S. Ct. 2581 (1994) ............. 13

Iowa y. Illinois, 147 U.S. 1 (1893) ................ 19

iV

Itoba Ltd. v. Lep Group Pic, 54 F.3d 118 (2nd Cir. 1995),

curt. Gen, TIE BAA Pee Cee ae eaves es aes 17

Jones v. Petty Ray Geophysical Geosource, Inc.,

Tae C< , ee se I a ee EN ewes 9

Jones v. United States, 137 U.S. 202 (1890) .......... 19

Leasco Data Processing Equipment Corp. v. Maxwell,

ae RY Te Oe. ea re 17

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ...... 5

Martinez-Baca v. Suarez-Mason, No. 87-2057 (SC)

CO: Soe SU, SO Ey ek ws Oh ka Ge ee Ae eR 12

Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

Cap Se ee aS nc POR AS Xs Seb eae OAs 17

Murray v. Schooner Charming Betsy,

i aaeig Gen ED ig oe i onics Koes + oe see wd 19

Mushikiwabo v. Barayagwiza,

No. 94 Civ. 3627, 1996 WL 164496

8S 8 eR | ee eee 6, 8, 11, 12

NCAA vy. Tarkanian, 488 U.S. 179 (1988) ............ 5

The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) ........... 17

The Paquete Habana, 175 U.S. 677 (1900) ........... 1]

etna ei A eta alles wine

Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) .. 8. 10. 1]

Sanchez-Espinoza v. Reagan,

#70 F260 202 (D.C. Cir. 1985)... .. 10, 14

The Schooner Exchange v. M’Faddon.

11 U.S. (7 Cranch) 116 (1812) ................. 19

Seatrain Shipbuilding Corp. v. Shell Oil Co..

sited peck i ee er re 10, 12

Société Nationale Industrielle Aérospatiale v.

United States District Ct., 482 U.S. 522 1s ra os 19

The Steamship Appam, 243 U.S. 124 (1917) .......... 19

Tannenbaum v. Rabin,

No. CV-95-4537, 1996 WL 75283

enn PO ee y

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1003 (1985) .......... 8,9, 11

Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992),

cert. denied, 508 U.S. 972 (1993) ............ 10, 14

United States v. Aluminum Co. of America,

148 F.2d 416 (2nd Cir. 1945)

United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833) ... 19

vi

United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) ... 16

United States v. Wong Kim Ark, 169 U.S. 649 (1898) .... 19

United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) ... 18

Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) . 8, 11

14

Statutes and Legislative Materials

16 U.S.C, GERI eo vis 0's Swe 8 Vn cise CERES 16

1 UBS. OU oc ce cece ear luwe a eres 16

1G USL, SRA. b's 00 eo bees ae be eee 16

1S U.S. 2 BA). ba ic cen eee neeee eee 16

1S UDA Fae obs ONS eh nh oe ee ee 16, 17

oe UGA... © UBRE «4 och sao eu Se een 5

yr SOR Com Fs Pree ie re ey eee rar passim

Be USM..6 10 0k bis CASE se eee se eee 5

Et ie 2. Seer eeee rT rey Cees yee r es 5

99 UBL. GD 0 0 6 O56 Oks ee See 16

Judiciary Act of 1789, ch.20, § 9, 1 Stat. 7316.......... 7

Vii

Law of April 30, 1790, ch. 9, § 8, 1 Stat. 112 (1790) .... 16

Law of March 3, 1819, ch. 77, § 4, 3 Stat. 510,

continued in force by Law of May 15, 1820,

TR. REM pe Wek oo x Sn eb www wnnn 17

Torture Victim Protection Act, Pub. L. No. 102-256,

106 Stat. 73 (1992), reprinted at 28 U.S.C.A. § 1350

(West 1993) (note following) ............... passim

H. REP NO. 367 (I), 102d Cong., Ist Sess. 1991,

1992 U.S.C.C.A.N. 84, 86 (Nov. 25, 1991) .... 9,10, 11

S. REP. No. 249, 102d Cong.. Ist Sess.,

1991 WL 258662 (Leg. Hist.) (Nov. 26,1991) ....... 10

Treaties and Conventions

Convention on the Prevention and Punishment of

the Crime of Genocide, 78 U.N.T.S. 277,

entered into force Jan. 12 1951, entered into force

for United States Feb. 23,1989 ................ 15

Convention for the Protection and Punishment of

Crimes Against Internationally Protected Persons,

Including Diplomatic Agents, 28 U.S.T. 1975,

Ca RES Fs ie os | oa ee 18

Convention for the Suppression of Unlawful Seizure

of Aircraft, 22 U.S.T. 1641, T.I.A.S. 7192 (1971) .... 18

=

—

Vili

Convention Against the Taking of Hostages,

TEAS, Cee ee a 6 aan eek i cee wn 18

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Dec. 10, 1984,

SENATE TREATY Doc. No. 20, 100th Cong., 2d Sess.,

23 I1.L.M. 1027 (1984), 24 LL.M. 535 (1985) .... 14, 18

Articles, Treatises and Other Materials

GoW gk ee eee eres Wren fa &

eh Ri GO Bee ee: oe hae ee ee ees Xs

Anne-Marie Burley, The Alien Tort Statute and the

Judiciary Act of 1789: A Badge of Honor,

oF ee ft || eee ere rer eee 8

William R. Casto, The Federal Courts’ Protective

Jurisdiction Over Torts Committed in Violation

of the Law of Nations, 18 Conn. L. Rev. 467 (1986) ..... 8

William S. Dodge, The Historical Origins of the

Alien Tort Statute: A Response to the "Originalists,"

19 Hastings Int’] & Comp. L. Rev. 22: (1996) ..... 8, 12

Ralph G. Steinhardt, Fulfilling the Promise of

Filartiga: Litigating Human Rights Claims

Against the Estate of Ferdinand Marcos,

yp Fe ye ee ene arr ie 8

Joseph Modeste Sweeney, A Tort Only in Violation

of the Law of Nations, 18 Hastings Int’] & Comp.

PG I Be rs on boca Dk iasy wa 8, 12

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS

LAW OF THE UNITED STATES (1987) ........... 17, 19

STATEMENT OF INTEREST

Amici curiae David J. Bederman, Erwin Chemerinsky,

William Dodge, Martha Field, Burke Marshall, Judith Resnik,

David L. Shapiro, and William W. Van Alstyne are professors of

federal jurisdiction or international law who have followed

developments under the Alien Tort Claims Act since the decision

of the United States Court of Appeals for the Second Circuit in

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). We file this

brief with the consent of all parties.

While we do not hold uniform views about all aspects of

the ATCA and the cases construing it, we believe that the federal

courts have applied the statute in a rigorous manner that has

yielded generally consistent results. In particular, we do not

believe that the cases under the ATCA have disturbed the overall

fabric of federal jurisdiction. As a consequence, we do not believe

that the carefully reasoned decision of the Court of Appeals here,

which is consistent with the rigorous approach of earlier decisions,

warrants review, particularly given the prospect that the course of

proceedings on plaintiffs’ claims under the Torture Victim

Protection Act will make it unnecessary to decide the ATCA issues

petitioner raises. We therefore urge the Court to let the decision

stand.

STATEMENT OF THE CASE

Plaintiffs-respondents filed related actions in the United

States District Court for the Southern District of New York.

Alleging acts of genocide, war crimes, torture, extrajudicial

killing, and other violations of fundamental human rights

committed by forces in the former Yugoslavia under the command

and control of petitioner Radovan Karadzic, Pet. App. 46,

plaintiffs asserted claims, among others, under the Alien Tort

Claims Act, 28 U.S.C. § 1350 ("ATCA"), and the Torture Victim

Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992),

reprinted at 28 U.S.C.A. § 1350 (West 1993) (note following)

("TVPA"). Petitioner was personally served with the summonses

and complaints during two separate visits to New York City in

early 1993. Pet. App. 49-50.

On May 10, 1993, petitioner moved to dismiss for lack of

subject matter jurisdiction, lack of personal jurisdiction,

insufficiency of service of process, and nonjusticiability. Pet.

App. 46-47. On September 7, 1994, after receiving briefing on

only the service and personal jurisdiction issues, the District Court

granted petitioner’s motion to dismiss for lack of subject matter

jurisdiction on the ground that the Alien Tort Claims Act did not

reach petitioner’s acts because he was not an official of any

recognized state. Pet. App. 58-59; 866 F. Supp. 734 (S.D.N.Y.

1994).

On October 13, 1995, the United States Court of Appeals

for the Second Circuit reversed. Pet. App. 5; 70 F.3d 232 (2d

Cir. 1995). The Court held that plaintiffs’ allegations of genocide

and war crimes stated violations of customary international law

actionable under the ATCA regardless of petitioner’s status as a

state actor. Pet. App. 16-22. The Court also held that the

customary international law offenses of torture and summary

execution did include a state action requirement. Pet. App. 22-23.

Accordingly, the Court of Appeals held, petitioner would be liable

under the ATCA for acts of torture and summary execution

without regard to state involvement to the extent those acts were

committed in pursuit of genocide or war crimes, and liable under

the statute on claims of torture and summary execution on proof

of state action. Pet. App. 23.

The Court of Appeals next held that the customary

international law of human rights applies to states without

distinction between recognized and unrecognized states, and that

as a result, plaintiffs’ allegations entitled them to prove either that

petitioner’s regime satisfied the criteria for a state, or that he acted

under color of law of Yugoslavia. Pet. App. 25-26. Finally, the

Court held that plaintiffs’ allegations of torture and summary

execution stated claims under the Torture Victim Protection Act,

which would require them to prove, among other things, that

petitioner acted with official authority or under color of law. Pet.

App. 26-28.!

On January 6, 1996, with a brief opinion, the Court of

Appeals denied a petition for rehearing. Pet. App. 44; 74 F.3d

377 (2d Cir. 1996). This petition for a writ of certiorari followed.

ARGUMENT

Petitioner purports to present to this Court a series of

broadly cast questions going to the foundation and scope of the

ATCA. Pet. i-ii. Petitioner's sweeping language boils down,

however, to two basic assertions: first, that the decision below

fundamentally conflicts with other federal courts’ treatment of the

Statute; and second, that the decision gives the statute

unprecedented and unjustifiable reach.

As an initial matter, even if the decision below presented

questions under the ATCA that in other circumstances might

' Although the District Court had ruled only on subject matter jurisdiction, the

parties also briefed issues of service, personal jurisdiction, and justiciability under

the political question doctrine. The Court of Appeals held that (a) personal

service on petitioner outside of the U.N. headquarters district effectively

subjected him to personal jurisdiction by the District Court, Pet. App. 30; (b)

petitioner could not claim immunity under either the Agreement Between the

United Nations and the United States of America Regarding the Headquarters of

the United Nations, reprinted at 22 U.S.C. § 287 note (1988), or federal common

law, Pet. App. 31-34; and (c) the “politically charged context" in which the cases

arose did "not transform them into cases involving nonjusticiable political

questions," Pet. App. 35-39. Amici do not address any of these holdings, except

to note that none appears to warrant this Court's review.

warrant this Court’s review, the Court should deny the petition

here. The multiple claims asserted by plaintiffs and the alternative

basis of jurisdiction and liability provided by the TVPA make this

case particularly unsuited for review at this early, pretrial stage, as

the course of proceedings may well eliminate each of the issues

under the ATCA petitioner asks this Court to decide.

In any event, neither of petitioner’s basic assertions has

merit. First, the federal courts have interpreted the ATCA in a

consistent, restrained manner, and Congress endorsed their

approach when it enacted the TVPA in 1992. Indeed, it appears

that petitioner himself did not contest in the Court of Appeals

many of the issues he seeks to raise now. On the principal issue

addressed by the Court of Appeals -- state action as a component

of various offenses under the customary international law of human

rights — petitioner can point to no divergence of views warranting

this Court’s intervention. Second, the reading given these statutes

by the Court of Appeals below and other federal courts does not

render these statutes anomalous exercises of federal jurisdiction.

To the contrary, these laws comport with a wide variety of other

federal statutes by which Congress has exercised its authority,

consistent with international law, to prescribe and adjudicate

conduct occurring abroad.

PLAINTIFFS’ ALTERNATIVE RELIANCE

ON THE TVPA MAKES REVIEW OF

THIS CASE AT THIS STAGE PREMATURE.

First and foremost, the petition should be denied because,

in light of the plaintiffs’ alternative reliance on the TVPA and the

unchallenged holdings of the Court of Appeals as to state action,

the future course of proceedings could easily render moot each of

the ATCA issues petitioner raises.

First, the TVPA and 28 U.S.C. § 1331 provide an

undisputed basis of jurisdiction on which plaintiffs’ entire case may

go forward. It is undisputed that section 1331 confers federal

jurisdiction over an action under the TVPA. E.g., Pet. App. 28.

It is also undisputed that the TVPA provides a federal cause of

action against any individual who “under actual or apparent

authority, or under color of law of any foreign nation" commits

torture or extrajudicial killing. TVPA § 2(a). Giving full effect

to the statutory requirement, the Court of Appeals held that

plaintiffs here would need to show state action in order to prevail

on their claims of torture and extrajudicial killing, Pet. App. 22-

23, a result with which petitioner obviously does not take issue.

The Court of Appeals also explained how plaintiffs might

meet the state action requirement. Pet. App. 24-26. It first set

forth the showing plaintiffs would need to make in order to prove

that the Republic of Srpska qualified as an unrecognized, de facto

State under international law. Jd. 24-26. Petitioner raises no issue

as to that portion of the Court’s analysis. The Court of Appeals

then explained that, alternatively, plaintiffs could show that

petitioner acted “under color of law" by acting in concert with

state officials of Yugoslavia. /d. 26. In finding instructive the

“color of law" requirement of 42 U.S.C. § 1983, the Court of

Appeals adopted the same standard that petitioner urges here.

Compare Pet. App. 26 (citing § 1983 and Lugar v. Edmondson Oil

Co., 457 U.S. 922 (1982)), with Pet. 12 (citing § 1983 and NCAA

v. Tarkanian, 488 U.S. 179 (1988)).

Hence, at this point, there is no dispute that plaintiffs have

stated a claim under the TVPA for which section 1331 provides

jurisdiction. In light of that uncontested basis of jurisdiction,

plaintiffs should also be permitted, under principles of

supplemental jurisdiction, 28 U.S.C. § 1367, and without regard

to the ATCA, to pursue any other causes of action properly arising

under either international law or the applicable municipal law of

tort.

Second, because the District Court dismissed these actions

on the pleadings, plaintiffs have had no opportunity to prove either

that the entity of which petitioner is an official qualifies as a state,

or that petitioner acted under color of law of Yugoslavia, which

clearly qualifies as a state. Should plaintiffs show state action by

either of these routes in accord with the standards set forth by the

Court of Appeals, they will be able to pursue their claims of

torture and extrajudicial killing. As the Court of Appeals noted,

the conduct alleged to constitute genocide and war crimes may also

qualify as torture and extrajudicial killing, Pet. App. 23,

particularly where, as here, plaintiffs allege that petitioner and his

forces used acts of rape, forced impregnation, physical abuse, and

murder to pursue their genocidal campaign. Hence, plaintiffs may

be able to prove liability for the wrongful acts alleged without

relying on their claims of genocide and war crimes, which would

render moot petitioner’s argument that those offenses include a

state action component.

In order to ensure the informed consideration of issues that

a full record facilitates, this Court generally refrains from

reviewing decisions arising at an early, pretrial stage. This sound

policy applies with special force in this case, where the

development of a full evidentiary record on plaintiffs’ several

claims would so clearly sharpen and possibly eliminate the issues

petitioner attempts to raise.

Third, the pattern of multiple claims and alternative bases

of jurisdiction presented here may well prove characteristic of

international human rights cases in the post-TVPA era. See

Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627, 1996 WL

164496 (S.D.N.Y. Apr. 9, 1996). Thus, the same factors

counseling Genial here will likely diminish the significance of

ATCA issues in other cases.

In short, review at this stage could easily have no effect on

the actual outcome in this case and little or no effect in others.

That prospect alone warrants denying the petition.

PETITIONER HAS IDENTIFIED NO ISSUE

UNDER THE ATCA WARRANTING REVIEW.

Petitioner raises no issue concerning the ATCA that

warrants a grant of certiorari in this case. As an initial matter,

the case plainly does not provide a suitable vehicle to decide the

several issues concerning the ATCA that petitioner did not

properly raise in the Court of Appeals but nevertheless seeks to

present here. Given the consistent approach taken by the federal

courts to claims under the statute for international human rights

violations, and Congress's endorsement of that approach, there

would be no reason for the Court to review any of those issues

even had petitioner properly raised them. On the one substantive

issue addressed below -- whether state action is a component of

genocide and war crimes -- the decision of the Court of Appeals

is in compiete accord with other federal courts, the views of the

United States, and authoritative international law sources.

A. The Federal Courts Have

Consistently Applied the ATCA.

The ATCA was enacted by the First Congress as part of ~

the Judiciary Act of 1789. Judiciary Act of 1789, ch. 20, § 9, 1

Stat. 73 (codified as amended at 28 U.S.C. § 1350 (1993)). It

provides:

The district courts shal! have original jurisdiction

of any civil action by an alien for a tort only,

committed in violation of the law of nations or a

treaty of the United States.

Id. While the ATCA has generated a substantial amount of

historical investigation? and academic commentary, *the federal

courts have had little, if any, difficulty actually applying it to

allegations, like those here, of violations of human rights norms

recognized as fundamental under international law.

First, the three Courts of Appeals that have now addressed

the issue have each held that the ATCA both confers jurisdiction

and recognizes a right to sue by private parties alleging

international human rights violations. Pet. App. 9-10; Abebe-Jira

v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996); Hilao v. Estate of

Marcos, 25 F.3d 1467, 1474-75 (9th Cir. 1994), cert. denied, 115

S. Ct. 934 (1996).* Indeed, petitioner conceded in the Court of

2 Compare William S. Dodge, The Historical Origins of the Alien Tort Statute:

A Response to the "Originalists," 19 Hastings Int'l] & Comp. L. Rev. 221 (1996)

(historical origins support liberal construction of ATCA), and William R. Casto,

The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of

the Law of Nations, 18 Conn. L. Rev. 467 (1986) (same), with Joseph Modeste

Sweeney, A Tort Only in Violation of the Law of Nations, 18 Hastings Int’! &

Comp. L. Rev. 445 (1995) (historical origins support restrictive interpretation).

3 E.g., Ralph G. Steinhardt, Fulfilling the Promise of Filartiga: Litigating

Human Rights Claims Against the Estate of Ferdinand Marcos, 20 Yale J. Int'l

L. 65 (1995); Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act

of 1789: A Badge of Honor, 83 Am. J. Int'l L. 461 (1989).

_

* See also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 776-77 (D.C. Cir.

1985) (Edwards, J., concurring); Mushikiwabo v. Barayagwiza, No. 94 Civ.

3627, 1996 WL 164496, at *2 (S.D.N.Y. Apr. 9, 1996); Xuncax v. Gramajo,

886 F. Supp. 162, 179 (D. Mass. 1995); Paul v. Avril, 812 F. Supp. 207, 212

(S.D. Fla. 1993); Forti v.Suarez-Mason, 672 F. Supp. 1531, 1539 (N.D. Cal.

1987) ("Forti 1"), 26 Op. Att'y Gen. 250, 252 (1907) (ATCA "providejs} a right

of action and a forum" for private tort suit over treaty violation); 1 Op. Att'y

Gen. 57, 59 (1795) (victims of piracy “have a remedy by civil suit in the courts

of the United States; jurisdiction being expressly given to these courts" by the

ATCA).

“ a ~

Appeals that the ATCA provides a cause of action, advising the

Court of Appeals that "Congress directly addressed the matter of

civil remedies and created two express causes of action . . . under

bot § 1350 and the TVPA." Appellee’s Brief (March 17, 1995)

27.

Congress erased all doubt about the effect of the ATCA to

authorize suit when it enacted the Torture Victim Protection Act

of 1991, which codifies the cause of action by aliens for official

torture or extrajudicial killing and extends the right to sue to

citizens. Both the House and Senate Reports expressly evince

Congress’s understanding that a "remedy" for such offenses was

"already available" to aliens under the ATCA. H. REP. No. 367

(1), 102D CoNG., Ist SEss. 1991, 1992 U.S.C.C.A.N. 84, 86

> Then-Judge Bork took a contrary view in his 1984 concurrence in Tel-Oren.

While he acknowledged that the ATCA might be read to reflect "Congress’

recognition (as opposed to creation)" of a right to sue, 726 F.2d at 811, he

ultimately concluded that suit would lie only if international law both set forth the

substantive norm and provided the procedural vehicle for its vindication. Jd. at

816. Judge Bork did not attempt to square that position with his acknowledgment

that the Congress that enacted the ATCA did intend to authorize suit for at least

certain law-of-nations offenses, including violations of safe-conducts, the rights

of ambassadors, and the laws of piracy, id. at 813-14; nor did he identify the

sources of international law that, in his view, provided a cause of action for such

violations, compare id. at 813-16 & nn. 22-23 with id. at 778-79 (Edwards, J.,

concurring). Apart from the district court decision in Tel-Oren, which did not

command a majority in the Court of Appeals for the ground of its judgment, the

only other reported decisions suggesting a view consistent with Judge Bork’s are

two district court decisions granting motions to dismiss on the ground that

plaintiff was not an alien, but then pointing to the purported absence of a cause

of action as, at best, an alternative holding, in discussions that confuse the

relevance of the issue. See Jones v. Petty Ray Geophysical Geosource, Inc., 722

F. Supp. 343, 347 (S.D. Tex. 1989) (relying on Filartiga to identify conduct

actionable under ATCA); Tannenbaum vy. Rabin, No. CV-95-4537, 1996 WL

75283, at * 5 (E.D.N.Y. Feb. 13, 1996) (apparently relying on district court

decision in Tel-Oren as support for dismissal for lack of alienage).

10

(Nov. 25, 1991) (hereinafter HOUSE REPORT ); S. REP. No. 249,

102D CONG., IST SESS., 1991 WL 258662 (Leg. Hist.) at 4 (Nov.

26, 1991) (hereinafter SENATE REPORT). Further, the legislative

history emphasizes that the ATCA "should remain intact to permit

suits based on other norms that already exist or may ripen in the

future into rules of customary international law." HOUSE REPORT

at 86 (emphasis added); see also SENATE REPORT 1991 WL

258662 at 4-5.

The explicit views of a subsequent Congress as to the

enactments of an earlier one are entitled to significant weight,

particularly where, as petitioner suggests is the case here, the

intent of the enacting Congress is hard to discern. See, e.g.,

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596

(1980). Congress’s express confirmation that the ATCA provides

a civil "remedy" by “ permit[ting] suits" based on substantive

international law norms provides additional reason to respect the

federal courts’ identical conclusion.

Second, the courts applying the ATCA have allowed its

express language to determine its scope. Specifically, as

Congress directed, the statute has been limited to suits by aliens.

At the same time, the federal courts have refused invitations, such

as petitioner’s here, Pet. 17, to read into the statute territorial

restrictions that Congress did not impose. See, e.g., Trajano v.

Marcos, 978 F.2d 493, 500 (9th Cir. 1992), cert. denied 508 U.S.

972 (1993); Paul, 812 F. Supp. at 211.

Third, courts applying the ATCA have agreed that

customary international law provides the substantive norms of

conduct defining the tort. See, e.g., Hilao, 25 F.3d at 1475;

Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d

421, 425-26 (2d Cir. 1987), rev’d on other grounds, 488 U.S. 428

(1989); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-07 (D.C.

Cir. 1985); Filartiga v. Pena-Irala, 630 F.2d 876, 880-81 (2d Cir.

1]

1980); Xuncax, 886 F. Supp. at 184-85; see also Tel-Oren, 726

F.2d at 781-82 (Edwards, J., concurring); id. at 820-21 (Bork, J.,

concurring). It follows that a court must apply the customary

international law that governed the defendant’s conduct at the time

the defendant acted. See Filartiga, 630 F.2d at 881. A court

could hardly do otherwise, as customary international law is, by

definition, an evolving body of law. The Paquete Habana, 175

U.S. 677, 694 (1900). Moreover, Congress has expressly

endorsed that approach. HOUSE REPORT at 86 (ATCA “should

remain intact to permit suits based on other norms that already

exist or mo. ripen in the future into rules of customary

international law") (emphasis added)).

Fourth, the federal courts have been rigorous in limiting

the ATCA’s reach to "specific, universal and obligatory" norms of

customary international law of human rights. Hilao, 25 F.3d at

1475; see Pet. App. 10 (ATCA reaches only conduct that violates

“well-established, universally recognized norms of international

law" (citation omitted)); Te/-Oren, 726 F.2d at 781 (Edwards, J.,

concurring). Specifically, federal courts have held that crimes

such as official torture, summary execution, causing the

disappearance of persons taken into custody, and prolonged

arbitrary detentions are actionable under the statute, while free

speech violations, negligence, and fraud are not.© No court has

© Compare Abebe-Jira, 72 F.3d 844 (official torture and cruel, inhuman, and

degrading treatment actionable); Hilao, 25 F.3d at 1475 (official torture,

summary execution, and disappearance of arrestees actionable); Filartiga, 630

F.2d at 884-85 (official torture actionable); Mushikiwabo v. Barayagwiza, 1996

WL 164496, at *2 (genocide, torture, and summary execution actionable);

Xuncax, 886 F. Supp. at 184-87 (torture, summary execution, disappearance,

arbitrary detention, and certain cruel, inhuman, and degrading treatment

actionable); Paul, 812 F. Supp. at 21i-12 (torture and arbitrary detention

actionable); Forti v. Suarez-Mason, 694 F. Supp. 707, 709-10 (N.D. Cal. 1988)

(continued...)

12

ever suggested that the offenses alleged here -- genocide, torture,

war crimes, and crimes against humanity -- do not fall within the

scope of the ATCA. See, e.g., Mushikiwabo v. Barayagwiza,

1996 WL 164496, at *2 (genocide actionable).’

® (...continued)

("Forti IT") (disappearance actionable); Forti ], 672 F. Supp. at 1541-42 (torture,

prolonged arbitrary detention, and summary execution actionable); and Martinez-

Baca v. Suarez-Mason, No. 87-2057 (SC) (N.D. Cal. Apr. 22, 1988) (torture,

prolonged arbitrary detention, and cruel, inhuman and degrading treatment

actionable), with Hamid v. Price Waterhouse, 51 F.3d 1411, 1418 (9th Cir. 1995)

(fraud, breach of fiduciary duty, or misappropriation of funds not actionable)

cen. denied, 116 S. Ct. 709 (1996); Amlon Metals, Inc. v. FMC Corp., 775 F.

Supp. 668, 670-71 (S.D.N.Y. 1991) (shipping hazardous wastes not actionable);

and Guinto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal. 1986) (free speech

violations not actionable).

7 Petitioner waited until his petition for rehearing to raisi any question about the

decision in Filartiga, having discussed the case during the principal briefing only

to support his argument that the ATCA should be limited to "non-state action."

Appellee’s Br. 18-19. When petitioner did challenge Filartiga, he relied on a

recently published law review article to argue, as he does here, that Congress

intended the statute to apply only to actions under the law of prize. See Pet. 14

(citing Sweeney, note 2 above); Petition for Rehearing (Nov. 15, 1995) 3. But

see Dodge, note 2 above (criticizing Professor Sweeney's thesis as historically

and legally unsound). It would be difficult, at a minimum, for a federal court to

adopt Professor Sweeney's historical hypothesis in the face of the general rule

that statutes be read to mean what they say, e.g., Connecticut Nat'l Bank v.

Germain, 503 U.S. 249, 253-54 (1992); the consistent judicial interpretation of

the statutory language, e.g., Holder v. Hall, 114 S. Ct. 2581, 2629 (1994)

(separate opinion of Blackmun, Stevens, Souter, and Ginsburg, JJ.); and the

endorsement of that interpretation by a subsequent Congress, e.g., Seatrain

Shipbuilding, 444 U.S. at 596. In any event, a single law review article does not

provide an occasion for granting certiorari, particularly when its thesis has not

been adopted — or, with the exception of the decision below on rehearing, as yet

even considered — by any lower court.

O23:

a ee es

13

B. The Federal Courts Are In Accord

On The State Action Issues Petitioner Raises.

Prior to the petition for rehearing, the sole ATCA-related

“ground on which petitioner sought to defend the District Court’s

judgment was his argument that the statute did not confer subject

matter jurisdiction over claims based on "non-state action."

Appellee’s Br. 19; see id. 18-26. Hence, the Court of Appeals

decided two questions as to the scope of the Alien Tort Act:

whether some violations of the law of nations may

be remedied when committed by those not acting

under the authority of a state; [and,] if so, whether

genocide, war crimes, and crimes against

humanity are among the violations that do not

require state action.

Pet. App. 5. The Court of Appeals answered both questions

affirmatively, Pet. App. 16-22, and then set forth the standards by

which plaintiffs-respondents might establish state action as to those

offenses, such as torture and summary execution, that require it,

id. at 22-26. None of these rulings merits review by this Court.

Courts applying the ATCA have uniformly recognized that

certain acts, such as torture, murder, prolonged arbitrary

detention, and causing a person’s disappearance, do not implicate

the law of nations absent official sanction, sponsorship, or

involvement. E.g., Trajano, 978 F.2d at 500 (torture); Sanchez-

Espinoza, 770 F.2d at 205-07 (torture and summary execution,

among others); Filartiga, 630 F.2d at 889 (torture); Xuncax, 886

F. Supp. at 184-85 (torture, summary execution, disappearance,

and arbitrary detention); Forti IJ, 694 F. Supp. at 709-11

(disappearance); Forti I, 672 F. Supp. at 1541-42 (torture, murder,

and prolonged arbitrary detention); see also Tel-Oren, 726 F.2d at

794-95 (Edwards, J., concurring) (torture). Relevant international

law authorities are to the same effect. See, e.g., Convention

14

Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, art. 1(1), Dec. 10, 1984, SENATE

TREATY Doc. No. 20, 100th Cong., 2d Sess., 23 I.L.M. 1027

(1984), 24 1.L.M. 535 (1985) (requiring that pain or suffering be

“inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity" in order to constitute violation). In accord with

these authorities, the Court of Appeals held that plaintiffs’ claims

of torture and summary execution required a showing of state

action. Pet. App. 22-23; see Part I above.

The authorities are equally consistent, however, in

recognizing that other norms of customary international law apply

to individuals as private persons, without regard to state

involvement. As the United States advised the Court of Appeals,

“non-state actors may be responsible for violations of international

humanitarian law, depending upon the character of the individual

claim." Statement of Interest of the United States (September 13,

1995) 6. Indeed, in Sanchez-Espinoza, the case upon which

petitioner principally relies, the Court of Appeals for the District

of Columbia Circuit expressly stated that certain “private,

nongovernmental acts . . . are contrary to treaty or the law of

nations -- the most prominent examples being piracy and assaults

upon ambassadors." 770 F.2d at 206. See also Tel-Oren, 726

F.2d at 795 (Edwards, J., concurring) (piracy and slave trading).

The Court of Appeals held here that genocide and certain

war crimes are among the law-of-nations offenses reached by the

ATCA that do not require a showing of state action. Pet. App.

16-22. Aside from the District Court below, no court has held to

the contrary. The holding of the Court of Appeals comports with

the views of the United States, which unequivocally stated to the

Court of Appeals that “the law of nations can indeed be violated

by non-state acts of genocide, war crimes, and crimes against

humanity.” U.S. Statement of Interest 14. It also comports with

15

authoritative international law sources. See, e.g., Convention on

the Prevention and Punishment of the Crime of Genocide, art. IV.

78 U.N.T.S. 277, entered into force Jan. 12, 1951, entered into

force for United States Feb. 23, 1989 ("Persons committing

genocide . . . shall be punished, whether they are constitutionally

responsible rulers, public officials or private individuals"): Pet.

App. 20-21 & n.7 (common article 3 of Geneva Conventions).

Petitioner cites no authority of any kind to the contrary.

Finally, in light of its holding that plaintiffs would need to

show state action to prevail on their claims of torture and summary

execution, the Court of Appeals explained how that requirement

might be met. Pet. App. 24-26. Petitioner does not take issue

with the standards laid down by the Court of Appeals. See Part I

above.

In short, as to both the applicability and content of the

State action requirement under customary international law, the

holdings of the Court of Appeals below comport with other federal

decisions, the views of the United States, and authoritative

international law sources. There is no reason for this Court to

review those holdings.

16

iil,

THE ATCA AND ITS APPLICATION BELOW COMPORT

WITH ESTABLISHED PRINCIPLES OF FEDERAL JURISDICTION,

Contrary to Petitioner’s contention, Pet. 16, the holding of

the Court of Appeals that the ATCA applies to conduct committed

beyond U.S. borders by a private citizen of a foreign state is

neither “unprecedented” nor "breathtaking." The ATCA follows

a long line of statutes that apply to conduct and persons beyond

this country’s borders. Against this background, the application

of the ATCA to the conduct at issue here is fully consistent with

accepted principles of federal jurisdiction and international law.

From the earliest days of the Republic, Congress has used

U.S. law, both civil and criminal, to regulate persons and conduct

beyond U.S. borders. As early as 1790, Congress used criminal

sanctions to punish piracy on the high seas, regardless of the

nationality of the perpetrator or the victim. Law of April 30,

1790, ch. 9, § 8, 1 Stat. 112 (1790) (criminalizing piracy on the

high seas) (presently codified at 18 U.S.C. § 1651); see also

United States v. Smith, 18 U.S. (S Wheat.) 153 (1820) (applying

1819 criminal prohibition against piracy). Congress has also

provided criminal remedies for torture, hostage taking, aircraft

piracy, certain transactions involving nuclear materials, and the

murder of diplomats, regardless of the place of the crime or the

nationality of the victim or the perpetrator.*

® See 18 U.S.C. § 2340A(b)(2) (torture); 18 U.S.C. § 1203(6)(1)(B) (hostage

taking); 18 U.S.C. § 1116(c) (murder of foreign officials and diplomats); 18

U.S.C. § 831(c)(3) (prohibited transactions involving nuclear materials); 49

U.S.C. § 46502(6)(1) (aircraft piracy); of 18 U.S.C. § 2332 (international

terrorism where U.S. national is killed).

I

aa

|

17

Civil remedies for extraterritorial wrongs also have long

been part of federal law. In 1819, Congress provided for civil

seizure of ships used for piracy, without regard to the nationality

of the victim or the pirate. Law of March 3, 1819, ch. 77, § 4,

3 Stat. 510, continued in force by Law of May 15, 1820, ch. 113,

§ 1, 3 Stat. 600; see also The Palmyra, 25 U.S. (12 Wheat.) |

(1827) (interpreting 1819 statute providing for civil seizure of

ships used for piracy). Recently, in the Torture Victim Protection

Act, Congress provided both alien and citizen victims of torture

with a civil cause of action for damages against their torturers

regardless of the nationality of the torturer or the place where the

torture occurred. Pub. L. No. 102-256, 106 Stat. 73 (1992); cf.

18 U.S.C. § 2333(a) (providing private right of action for treble

damages to U.S. nationals injured as a result of international

terrorism anywhere in the world).

In the realm of economic regulation, Congress has

extended the reach of U.S. antitrust and securities laws to conduct

engaged in abroad by foreign persons and entities. See generally

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES §§ 415, 416 (1987) (hereinafter "RESTATEMENT").

This Court and the courts of appeals have consistently upheld these

assertions of extraterritorial jurisdiction. See, e.g., Hartford Fire

Ins. Co. v. California, 509 U.S. 764 (1993) (applying U.S.

antitrust law to conduct abroad by foreign reinsurers); Matsushita

Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)

(applying U.S. antitrust law to conduct abroad by foreign

electronics manufacturers); /toba Ltd. v. Lep Group Plc., 54 F.3d

118 (2nd Cir. 1995), cert. denied, 116 S.Ct. 702 (1996) (applying

U.S. securities laws to conduct abroad by British share-purchaser);

Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326

(2nd Cir. 1972) (same). Indeed, it was “settled law" as early as

1945 "that any state may impose liabilities, even upon persons not

within its allegiance, for conduct outside its borders that has

18

consequences within its borders which the state reprehends; and

these liabilities other states will ordinarily recognize." United

States v. Aluminum Co. of America, 148 F.2d 416, 443 (2nd Cir.

1945) (L. Hand, J.).

It is a well-established principle of international law that all

States have universal jurisdiction to provide criminal and civil

redress for extraterritorial conduct that violates fundamental norms

of the law of nations, such as genocide, piracy and torture. See

United States v. Yunis, 924 F.2d 1086, 1091-92 (D.C. Cir. 1991)

(invoking universal jurisdiction over air piracy); Demjanjuk v.

Petrovsky, 776 F.2d 571, 582-83 (6th Cir. 1985), cert. denied,

475 U.S. 1016 (1986) (invoking universal jurisdiction in

extraditing suspected Nazi war criminal to Israel). For example,

numerous international treaties recognize universal jurisdiction

over the offenses defined by their terms.” Such universal

jurisdiction over grave breaches of human rights and other

international crimes reflects the status of such offenses as wrongs

against the entire international community for which any state may

pursue a remedy. Jn re Barcelona Traction, Light and Power

Company (Belgium v. Spain), 1970 1.C.J. Rep. 3, 33 ("In view of

the importance of the rights involved, all states can be held to have

® See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, art. 5(2), Dec. 10, 1984, SENATE TREATY Doc. No.

20, 100th Cong., 2d Sess., 23 I.L.M. 1027 (1984), 24 1.L.M. 535 (1985);

Convention Against the Taking of Hostages, art. 5(2), T.1.A.S. 11081 (1985);

Convention for the Protection and Punishment of Crimes Against Internationally

Protected Persons, Including Diplomatic Agents, art. 3(2), 28 U.S.T. 1975,

T.I.A.S. 8532 (1977); Convention for the Suppression of Unlawful Seizure of

Aircraft, art. 4(2), 22 U.S.T. 1641, T.1.A.S. 7192 (1971).

19

a legal interest in their protection"); RESTATEMENT § 404.!°

In the context of this substantial body of law, the Courts

of Appeals for each of the Second, Ninth, and Eleventh Circuits

have interpreted the ATCA as one more means by which Congress

has sought to remedy violations of the rule of law. There is no

need for this Court to examine their conclusion that the ATCA

reaches extraterritorial conduct that violates the most fundamental

norms of international law.

10 In practice, federal courts have interpreted and given effect to international

law in a wide variety of contexts, both procedural and substantive. For example,

issues of foreign sovereignty have been addressed in cases involving the Foreign

Sovereign Immunities Act, see Argentine Republic v. Amerada-Hess Shipping

Comp., 488 U.S. 428 (1989), and the Act of State Doctrine, see Banco Nacional

de Cuba v. Sabbatino, 376 U.S. 398 (1964). International procedural issues have

been considered in the context of the service of judicial documents abroad, see

FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300 (D.C. Cir.

1980); Commodity Futures Trading Comm'n v. Nahas, 738 F.2d 487 (D.C. Cir.

1984); obtaining evidence in a foreign state, see Société Nationale Industrielle

Aérospatiale v. United States Dist. Ct., 482 U.S. 522 (1987); and enforcing

foreign judgments, see Hilton v. Guyot, 159 U.S. 113 (1895). This Court has

explicitly addressed the broader issues of statutory construction in light of

international law standards, Murray v. Schooner Charming Betsy, 6 U.S. (2

Cranch) 64 (1804), and comity, Hartford Fire Insurance Co. v. California, 509

U.S. 764 (1993). Substantive issues of international law have been addressed in

the context of the acquisition and control of territory, Jones v. U.S, 137 U.S. 202

(1890); the resolution of boundary disputes, Jowa vy. Illinois, 147 U.S. 1 (1893);

Arkansas v. Tennessee, 246 U.S. 158 (1918); questions of nationality, United

States v. Wong Kim Ark, 169 U.S. 649 (1898); principles of war and neutrality

and their effect on private rights, The Steamship Appam, 243 U.S. 124 (1917);

Dow v. Johnson, 100 U.S. 158 (1879); and private property rights generally, The

Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); United States

v. Percheman, 32 U.S. (7 Pet.) 51 (1833).

CONCLUSION

The Court should deny the petition for a writ of certiorari.

David J. Bederman

1722 North Decatur Road

Atlanta, GA 30322

Erwin Chemerinsky

699 Exposition Boulevard

Los Angeles, CA 90089

William Dodge

200 McAllister Street

San Francisco, CA 94102

Martha Field

1575 Massachusetts Avenue

Cambridge, MA 02138

Burke Marshall

127 Wall Street

New Haven, CT 06510

Respectfully submitted,

Donald Francis Donovan

(Counsel of Record)

Barton Legum

Diane Hester

Natatie R. Williams

Thomas H. Prochnow

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, NY 10022

(212) 909-6000

Judith Resnik

699 Exposition Boulevard

Los Angeles, CA 90089

David L. Shapiro

1575 Massachusetts Avenue

Cambridge, MA 02138

William W. Van Alstyne

Science Drive and Towerview Road

Box 90362

Durham, NC 27708

Attorneys for Amici Curiae

May 13, 1996