# Appendix — Macharia v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1149

## Text

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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT DATED JULY 11, 2003

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2003 Decided July 11, 2003
No. 02-5252
MERANIA Murincu MAcuaRIA, ET AL.,

APPELLANTS,
V.

UNITED STATES OF AMERICA,

APPELLEE.

Before: GinsBurG, Chief Judge, and Rocers and Tarte,
Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TaTEL, Circuit Judge: Appellants, a prospective class of
more than 5,000 Kenyan citizens and businesses injured in
the 1998 bombing of the United States Embassy in Nairobi,
Kenya, sued the United States under the Federal Tort Claims
Act alleging that the government negligently failed to secure
the Embassy and to warn of a potential terrorist attack.
Following limited jurisdictional discovery, the district court
dismissed the complaint, finding that the discretionary

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Appendix A

function, foreign country, and independent contractor
exceptions to the Federal Tort Claims Act’s waiver of
sovereign immunity bar appellants’ claims. We affirm in all
respects. if

I.

At approximately 10:30 on the morning of August 7,

1998, an explosives-laden truck dispatched by the al Qaeda

terrorist network approached the entrance to the rear parking

lot of the United States Embassy in Nairobi, Kenya.

An embassy guard, a Kenyan employed by UIIS, a security

company working under contract with the State Department,

refused to open the Embassy gate. Blocked from entering

| the compound, one of the two terrorists began shooting while

the other threw a flash grenade at another guard. Unarmed

| and unable to notify the Embassy’s detachment of United

| States Marines either by telephone or radio, the guards ran

for cover. Although apparently still off-premises, the terrorists

detonated their explosives, causing massive internal damage

to the Embassy, killing forty-four Embassy employees and

approximately 200 Kenyan citizens, injuring some 4,000

individuals, and causing the collapse of an adjacent building.

Approximately nine minutes later, another al Qaeda terrorist

detonated an explosives-laden truck some thirty-five feet

from the outer wall of the United States Embassy in Dar Es

Salaam, Tanzania. That attack killed twelve people and
injured eighty-five.

Appellants, all Kenyan citizens and businesses injured
in the Nairobi bombing, filed suit against the United States
in the U.S. District Court for the District of Columbia alleging a

3a
Appendix A

that government actions and inactions led to the bombing
and exacerbated appellants’ injuries. Brought under the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.,
counts I and II of the complaint allege that the United States
Embassy was inherently dangerous; that State Department
employees knew or should have known about a likely attack
on the Embassy and that despite this knowledge they failed
to warn their superiors, the Embassy, and Kenyan citizens;
that the State Department failed to provide properly trained
security personnel to the Embassy and to take necessary
security precautions to prevent an attack; and that as a result
of these shortcomings, the Embassy had become a private
and public nuisance. Counts I and II also seek to hold
the United States liable for the negligence of the UIIS
guards. Count III alleges that the government’s security
failures violated customary international law, the Kenyan
Constitution, and the International Covenant on Civil and
Political Rights (ICCPR). Count IV seeks formation of a
constructive trust to hold any assets or funds seized by the
United States from Osama bin Laden and al Qaeda for the
benefit of plaintiffs and prospective class members.

Invoking the discretionary function and foreign country
exceptions to the FTCA’s limited waiver of sovereign
immunity, 28 U.S.C. § 2680(a), (k), the government moved
to dismiss. Before ruling on the government’s motion, the
district court allowed plaintiffs three months of jurisdictional
discovery. See Macharia v. United States, No. 99-3274
(D.D.C. Mar. 26, 2001). During discovery, the government
objected to plaintiffs’ efforts to obtain information from any
agency other than the State Department. The government also
objected to any discovery on the merits. A magistrate judge

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Appendix A

Sustained both objections, and the district court denied
plaintiffs’ motion for reconsideration. See Macharia v. United
States, No. 99-3274 (D.D.C. Dec. 17, 2001).

Following completion of jurisdictional discovery, the
district court dismisséd the complaint. Macharia v: United
States, 238 F. Supp. 2d 13 (D.D.C. 2002). Rather than “apply
the heightened requirements of [Federal Rule of Civil
Procedure] 12(b)(6) and treat all factual allegations—
including those related to jurisdiction—in the complaint as
true,” id. at 21 (internal quotation marks omitted), the court
treated the government’s jurisdictional arguments as a
“factual challenge,” id. at 20, under Federal Rule of Civil
Procedure 12(b)(1), and required plaintiffs to “demonstrate”
“through testimony and affidavits” that the “case is properly
before the court,” id. at 21. Observing that plaintiffs “were
afforded three months of discovery on the jurisdictional
question,” id., the court rejected plaintiffs’ contention that it
“should not dismiss the action pursuant to Rule 12(b)(1)
because [they] have not had the opportunity to conduct
sufficient jurisdictional discovery in this case,” id. With
respect to most allegations contained in counts I and II, the
court found that “[t]he decisions made by [the United States]
regarding the security of the Embassy and warnings of
possible threats are clearly discretionary in nature and
grounded in policy and therefore[ ] do not fall within the
FTCA’s waiver of sovereign immunity.” Jd. at 26. The district
court dismissed all claims based on the alleged negligence
of the UIIS guards under the foreign country and independent
contractor exceptions to the FTCA. Jd. at 26-28. As to count
Ill, the court held that sovereign immunity bars plaintiffs’
Kenyan Constitution and ICCPR claims, and that plaintiffs

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Appendix A

had failed to allege a claim under customary international
law. Jd. at 28-31. Having dismissed plaintiffs’ substantive
claims, the district court dismissed count IV, explaining that
“a constructive trust is not an independent cause of action.”
Id. at 31.

Plaintiffs now challenge the district court’s discovery
rulings and its dismissal of their complaint. Our review of
the district court’s dismissal of the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) is de
novo, see Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir.
2003); we review the district court’s discovery rulings for
abuse of discretion, see Goodman Holdings v. Rafidain Bank,
26 F.3d 1143, 1147 (D.C. Cir. 1994).

Il.

The FTCA authorizes district courts to hear suits for
money damages against the United States “for injury or loss
of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of
the Government ... if a private person .. . would be liable
to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
The Act’s waiver of sovereign immunity has various
exceptions, however. We agree with the district court that
three of those exceptions—discretionary function, foreign
country, and independent coniractor—bar appellants’ claims
under counts I and II.

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Appendix A

Discretionary Function Exception

The FTCA’s discretionary function exception bars claims -
“based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). In United States v. Gaubert, 499 U.S. 315, 322-
23 (1991), the Supreme Court established a two-part test for
determining whether the discretionary function exception
applies in a particular case. First, because “(t]he exception
covers only acts that are discretionary in nature, acts that
involve an element of judgment or choice,” id. at 322 (internal
quotation marks omitted), Gaubert’s first step requires that
we determine whether any “federal Statute, regulation, or
policy specifically prescribes a course of action for an
employee to follow,” id. If one does, “the employee has no
rightful option but to adhere to the directive.” Berkovitz v.
United States, 486 U.S. 531, 536 (1988). Under Gaubert’s
second step, which applies when there is no “federal statute,
regulation, or policy” and when the “challenged conduct
involves an element of judgment,” id., the court must decide
“whether th[e] judgment is of the kind that the discretionary
function exception was designed to shield,” id. “Because the
purpose of the exception is to prevent judicial ‘second-
guessing’ of legislative and administrative decisions
grounded in social, economic, and political policy through
the medium of an action in tort,” the Supreme Court
explained, “when properly construed, the exception protects
only governmental actions and decisions based on
considerations of public policy.” Gaubert, 499 U.S. at 323
(internal quotation marks and citations omitted).

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Appendix A

In this case, even after several months of discovery,
appellants failed to establish, as Gaubert’s first step requires,
the existence of a “federal statute, regulation, or policy” that
applies to any of the government’s allegedly negligent
conduct, including the government’s alleged failure to secure
the Embassy and to warn of a potential attack. This failure is
hardly surprising, for as the district court explained,
“determinations about what security precautions to adopt at
American embassies, and what security information to pass
on, and to whom this information should be given, do not
involve the mechanical application of set rules, but rather
the constant exercise of j udgment and discretion.” Macharia,
238 F. Supp. 2d at 23. Indeed, the Secretary of State has
authority to “develop and implement ... policies and
programs, including funding levels and standards, to provide
for the security of United States Government operations of a
diplomatic nature,” 22 U.S.C. § 4802(a)(1), and the “Physical
Security Standards” section of the State Department’s Foreign
Affairs Manual instructs “[p]roject managers and regional
security officers . . . [to] follow all standards to the maximum
extent possible,” Unitep States Dep’t oF STATE FOREIGN
AFFAIRS MANUAL, 12 FAM 314.1. The manual also directs
foreign service officers to engage in a process of

[r]isk management ... begin[ning] with an
assessment of the value of the assets, the degree
of a specific type of threat, and the extent of the
vulnerabilities. .. . A decision is then made as to
what level of risk can be accepted and which
countermeasures should be applied. Such a
decision involves a cost-benefit analysis, giving
decision makers the ability to weigh varying

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Appendix A

security risk levels against the cost of specific
countermeasures.

Id., 12 FAH-6 H-511.4-In short, embassy security is vested
in the discretion of State Department employees, from the

Secretary to the foreign service officers at various embassies.
See Macharia, 238 F. Supp. 2d at 23-24.

Conceding that they “did not rely on any documents” to
demonstrate that a “federal statute, regulation, or policy”
applied to the government’s conduct, Appellants’ Reply Br.
at 6, appellants contend that the discretionary function
exception is nevertheless inapplicable because the
government failed to follow an unwritten federal policy.
According to appellants, the Office of Diplomatic Security
(DS), the office within the State Department responsible for
embassy security, failed to file “trip reports” with the
Embassy’s Regional Security Officer following visits to the
Embassy in March and June 1998, even though “ ‘[a] team
trip report would have been a normal practice.’ ” Appellants’
Reply Br. at 6 {citing Williams Dep. at 125:19-20). DS’s
failure to file a trip report, appellants maintain, left the
Embassy with inadequate guidance about how to improve
security and to prevent al Qaeda’s attack.

Even assuming an unwritten practice can satisfy the
statute’s requirement, appellants have failed to establish that
DS had a mandatory obligation to file a trip report. To the
contrary, although the record establishes that filing trip
reports was DS’s “procedure,” one witness testified that
“reality sometimes intercedes, and you do not have sufficient
time to do something as formal as. . . a trip report.” Flowers

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Appendix A

Dep. at 51:15-17. The same witness explained that filing a
trip report “would be ideal, but it could have been that the
people that were team leaders . . . were immediately sent on
other trips or to handle other pressing business. . . . If [the
diplomatic security agent] was called away before he had a
chance to write a trip report, it might be sometime before he
gets to it or it could be never if this flood of work doesn’t
give him the opportunity to do it.” /d. at 49:7-21. The record
thus establishes only that filing trip reports was preferred,
not that it was required, i.e., not that it amounted to a
mandatory policy.

Having failed to identify a relevant “federal statute,
regulation, or policy” under Gaubert’s first step, appellants
contend that the discretionary function exemption is
inapplicable under the second Step because the government’s
conduct was the product of simple negligence rather than
social, political, or economic considerations. Specifically,
appellants cite twenty-one irstances of alleged government
negligence, from its failure to fix a pin in the drop bar at the
Embassy’s rear parking lot to its failure to timely design a
training program for vehicle bomb recognition and prevention
that led to appellants’ injuries. See Appellants’ Br. at 25-26.
The district court helpfully distilled these allegations into
Six Categories:

1) a failure to provide guidance and advice on
improving security at the Embassy, 2) a failure to
provide security equipment to the Embassy,
3) a failure to train adequately Embassy personnel
and contractors to deal with various security
threats, 4) a failure to warn adequately Embassy

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Appendix A

personnel, and others, of potential terrorist threats,
5) an improper classification of the level of
security risk at the Embassy, or 6) falsely leading
Embassy personnel to believe that security
analyses had been conducted or would be
conducted.

Macharia, 238 F. Supp. 2d at 22. The district court concluded
that all six categories were barred by the second step of the
discretionary function test. Jd. As the district court explained,
“{djecisions regarding how much safety equipment should
be provided to a particular embassy, how much training
should be given to guards and embassy employees, and the
amount of security-related guidance that should be provided
necessarily entails balancing competing demands for funds
and resources.” Macharia, 238 F. Supp. 2d at 25. “Each
individual embassy’s need for security,” the district court
noted:

must be balanced against the need perceived at
other embassies, and the need for security must
be balanced against the need for alternative
projects that could consume scarce resources.
Moreover, each of Defendant’s decisions
regarding security involved balancing potential
inconvenience to State Department employees
against the perceived security gains that would
result from a safety measure.

Id. We have little to add to the district court’s fine analysis,
except to note that, as the government points out in its brief,
“decisions about foreign embassies, especially their location

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Appendix A

and structure, require agency officials to account for policy
objectives, and consult and negotiate with the host country—
actions that, by their very nature, affect foreign relations.”
Appellee’s Br. at 27.

Appellants insist that “[n]othing in the record supports
the notion that anyone at DS ‘decided’ to: make inaccurate
statements, fail to keep a promise, fail to send a report, fail
to send a report on time, overlook a broken pin or outdated
dropbar, or fail to correct misapprehensions.” Appellants’ Br.
at 30. Put another way, appellants maintain that Gaubert’s
second step requires evidence that decision makers actually
considered social, economic, or policy considerations. But
we rejected just this argument in Cope v. Scott, 45 F.3d 445,
449 (D.C. Cir. 1995) (citation omitted): “What matters is
not what the decisionmaker was thinking, but whether the
type of decision being challenged is grounded in social,
economic, or political policy. Evidence of the actual decision
may be helpful in understanding whether the ‘nature’ of the
decision implicated policy judgments, but the applicability
of the exemption does not turn on whether the challenged
decision involved such judgments.”

Appellants’ challenges to the district court’s discovery
orders require little discussion. They argue that the district
court improperly applied a factual attack standard under
Federal Rule of Civil Procedure 12(b)(1), which requires
plaintiffs to demonstrate through affidavits and other
testimony that the court has jurisdiction, instead of a facial
attack standard under Federal Rule of Civil Procedure
12(b)(6), where the court accepts the plaintiffs’ allegations
as true. See Gould Elecs., Inc. v. United States, 220 F.3d 169,

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Appendix A

178 (3d Cir. 2000). According to appellants, the district
court’s choice of a factual attack standard was error, since
the court allowed discovery only regarding physical security
and denied appellants a chance to conduct discovery on
“threat response.” Appellants’ Br. at 18. In support of this
allegation, appellants point out that the deponents offered
by the government declined to answer any questions on the
threat issue, but appellants ignore the fact that those
deponents were not asked to testify on that issue. Moreover,
as the government observes, “appellants refute their own
argument by citing documents on threat information that
appellee produced in discovery, to support their claim of
failure to disseminate threat information.” Appellee’s Br. at
42. The district court thus properly employed a factual attack
standard under Federal Rule of Civil Procedure 12(b)(1).

Nor do we detect any abuse of discretion in the district
court’s other discovery orders. The State Department’s
statutory responsibility for embassy security obviated the
need for discovery in other departments and agencies.
See 22 U.S.C. § 4802. Likewise, discovery on the merits
would have been entirely irrelevant to the jurisdictional issue
raised by the government’s motion to dismiss. See Jgnatiev
v. United States, 238 F.3d 464, 467 (D.C. Cir. 2001)
(remanding dismissal of FTCA claim for jurisdictional
discovery). .

Foreign Country and Independent Contractor Exceptions
Our conclusion regarding the discretionary function

exception leaves only appellants’ allegations of negligence
by Embassy guards. According to appellants, the Kenyans ~

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Appendix A

UIIS hired as Embassy guards lacked adequate training and
equipment, and negligently failed to identify and stop the
terrorists from detonating the bomb. We agree with the district
court that the independent contractor and foreign country
exceptions bar these claims.

The FTCA’s waiver of soverei gn immunity applies only
to tortious acts undertaken by “officers or employees of any
federal agency ... and persons acting on behalf of a federal
agency in an official capacity.” 28 U.S.C § 2671. The Act
defines “federal agency” as “the executive departments [,]

. Independent establishments of the United States, and
corporations primarily acting as instrumentalities or agencies
of the United States, but does not include any contractor with
the United States.” Jd. The Supreme Court has interpreted
this language, referred to as the “independent contractor
exception,” to mean that a contractor’s negligence may only
be imputed to the United States if the contractor’s “day-to-
day operations are supervised by the Federal Government.”
United States v. Orleans, 425 U.S. 807, 815 (1976). “A critical
element in distinguishing an agency from a contractor,” the
Court explained, “is the power of the Federal Government
‘to control the detailed physical performance of the
contractor.’ ” Jd. at 814 (quoting Logue v. United States, 412
U.S. 521, 528 (1973)).

Appellants contend that DS designed the Embassy’s
contracts for employing local guards, handled all payments
to UIIS, and regularly provided advice regarding the
contracts. See Appellants’ Br. at 33. They also contend that
the contract required UIIS to provide the State Department
with the names of the local guards it employed, to submit

14a
Appendix A

the names of all personnel to the Department for approval,
to ensure that guards wear uniforms approved by the
Department, and to conduct inventories as directed by the
Department. Jd. Far from demonstrating day-to-day State
Department supervision of the contractor, however, these
allegations establish only that “the contract set forth detailed
guidelines and regulations that the contractor was required
to conform with as it implemented its hiring, supervision
and training of Embassy local guards.” Macharia, 238
F. Supp. 2d at 28. As the Supreme Court held in Orleans, the
government may “fix specific and precise conditions to
implement federal objectives” without becoming liable for
an independent contractor’s negligence. Orleans, 425 U.S.
at 816.

To be sure, appellants presented evidence that
supervision of the UIIS contract amounted to a “full
time job for one [Assistant Regional Security Officer].”
Appellants’ Br. at 34. Although this may well constitute the
sort of day-to-day supervision falling outside the independent
contractor exception, Assistant Regional Security Officers
are located overseas—in this case, in Nairobi—and the
FTCA’s sovereign immunity waiver does not extend to acts
or omissions arising in territory subject to the sovereign
authority of another nation. See 28 U.S.C. § 2680(k);
see also United States v. Spelar, 338 U.S. 217, 221 (1949)
(purpose of foreign country exception is to avoid having
another country’s law define the scope of the federal
government’s tort liability). Moreover, to the extent that
appellants allege negligent supervision of local guards by
State Department employees located in the United States,
those allegations are, for the reasons given above, barred by
the discretionary function exception. See supra pp. 6-10.

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Appendix A
Il.

Having considered appellants’ remaining arguments and
finding no basis for questioning the district court’s
disposition, we affirm in all respects.

So ordered.

16a

APPENDIX B — ORDER GRANTING MOTION TO
DISMISS AND ACCOMPANYING MEMORANDUM OF
THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA ENTERED JULY 30, 2002

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

Civil Action No. 99CV3274 (CKK)

MERINA M. MACHARIA, et al.,

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
(July 30, 2002)

Presently pending before the Court is Defendant United
States’ Motion to Dismiss Plaintiffs’ Amended Complaint
for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1), and for failure to state a
claim upon which relief can be granted, pursuant to Federal
Rule of Civil Procedure 12(b)(6). Plaintiffs, representing a
prospective class of over five thousand Kenyan citizens and
businesses, bring this action in connection with the August
7, 1998, terrorist bombing of the United States Embassy in
Nairobi, Kenya (the “Embassy”). Plaintiffs allege that
Defendant’s negligence related to the security of the Embassy

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Appendix B

compounded Plaintiffs’ injuries and losses suffered as a result
of the bombing. Upon review of Defendant’s motion to
dismiss, memorandum of law and attached exhibits,
Plaintiffs’ opposition thereto, Defendant’s reply, and the
relevant law, the Court shall grant Defendant’s motion to
dismiss.

J. BACKGROUND

On August 7, 1998, a terrorist bomb exploded at the rear
entrance to the American Embassy in Nairobi, Kenya, killing
over two hundred people, injuring thousands more, and
damaging Kenyan businesses located near the Embassy.
Plaintiffs’ Amended Complaint (“Cplt.”) at 68. The bombing
injured those inside the Embassy compound, and led to the
_ collapse of the adjacent Ufundi Building. Jd. § 71.‘Additional

injuries occurred when glass windows shattered at the nearby
Co-op Bank Building. i is believed that the bombing
was carried out by the al Oaeda terrorist organization, led
by Osama bin Laden. Jd. J 69.

Plaintiffs complain that the “actions and inactions by
the United States of America, principally through the
Department of State, created circumstances which permitted
the Bombing and subsequently caused and exacerbated the
loss and injury sustained by Kenyan victims.” Jd. at 68.
Specifically, Plaintiffs allege in Count One that the Embassy
was inherently dangerous and that employees of the
Department of State (“DOS”) knew or should have known
that a terrorist attack against the Embassy was likely. Cplt.
1 82-94. Despite this knowledge, Plaintiffs argue, DOS
employees failed to alert their superiors, the Embassy, and

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Appendix B

Kenyan citizens that such dangers were imminent. Jd. {] 57,
91 Additionally, Plaintiffs assert that DOS employees failed
to provide sufficiently trained security personnel to the
Embassy and failed to take necessary security precautions to
prevent such an attack. Jd. {J 88- 89. Plaintiffs allege further
that the United States “made security and rescue related
decisions based on race and national origin.” Cplt. | 92.
Plaintiffs also allege that the United States is responsible,
based on the doctrine of respondent superior, for the
negligence of the independent contractor providing security
services at the Embassy. Jd. Jf 52, 75, 88. As a result of this
alleged failure to provide appropriate security, Plaintiffs claim
in Count Two that the Embassy was a public and private
nuisance that “deprived neighbors of the use and enjoyment
of their adjoining property.” Jd. J 95-98. In Count Three,
Plaintiffs maintain that the United States violated
international customary law, the Kenyan Constitution, and
the International Covenant on Civil and Political Rights
(“ICCPR”) by its alleged security failures. Jd. [| 99-106.
Plaintiffs, in Count Four, request relief in the form of a
constructive trust, to hold any assets or funds seized by the
United States from Osama bin Laden and al Qaeda for the
“use, benefit, and enjoyment of the plaintiffs and prospective
class members.” Cplt. J 109. Plaintiffs allege that this Court
possesses jurisdiction over the present action pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et
seg., which operates as a limited waiver of the United States’
sovereign immunity. Cplt. at 68.

Defendant moves to dismiss Plaintiffs’ Complaint on the
grounds that it is not amenable to suit in this Court based on
the foreign country exception, 28 U.S.C. § 2680(k), and

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Appendix B

discretionary function exception, 28 U.S.C. § 2680(a), to the
FTCA’s waiver of sovereign immunity. Defendant’s
Memorandum of Law (“Def.Mem.”) at 14, 17. Defendant
contends first that Plaintiffs have failed to demonstrate that
any of the alleged negligent conduct complained of occurred
within the United States. Jd. at 14-17. Second, Defendant
argues that any actions that may have taken place within the
United States clearly fall within the discretionary exception
to the FTCA. Jd. at 17-30. Finally, Defendant asserts that
Plaintiffs fail to state a claim predicated on international and
Kenyan law and fail to state a claim for a constructive trust.
Id. at 2, 37-38.

II. DISCUSSION
A. Legal Standard

In reviewing a motion to dismiss for failure to State a
claim upon which relief may be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6), a court will not grant the
motion “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Conley v, Gibson, 355 U.S. 41, 45-46
(1957). Accordingly, at this early stage in the proceedings,
the Court assumes the veracity of all factual allegations set
forth in Plaintiff’s Complaint. See Doe v. United States Dep t
of Justice, 753 F.2d 1092, 1102 (D.C.Cir. 1985). Moreover,
“[t]he complaint must be ‘liberally construed in favor of the
plaintiff,’ who must be granted the benefit of all inferences
that can be derived from the facts alleged.” Schuler v. United
States, 617 F.2d 605, 608 (D.C.Cir. 1979). Nonetheless, the
Court is not bound to accept the legal conclusions of the

20a

Appendix B

non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762
(D.C. Cir. 1997).

Before a federal court may hear a case, it must ascertain
whether it has jurisdiction over the underlying subject matter
of the action. Bender v. Williamsport Area School Dist.,
475 U.S. 534, 541 (1986) (“Federal courts are not courts of
general jurisdiction; they have only the power that is
authorized by Article III of the Constitution and the statutes
enacted by Congress pursuant thereto.”). Motions to dismiss
for lack of jurisdiction over the subject matter of the action
are proper under Federal Rule of Civil Procedure 12(b)(1).
In the Rule 12(b)(1) context, the plaintiff bears the burden
of proving jurisdiction. McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 182-183 (1936); Land v.
Dollar, 330 U.S. 731, 735 (1947). When a defendant brings
a challenge to the actual complaint itself, without relying on
matters outside the pleadings, the motion to dismiss is a
“facial challenge” to a complaint, because a district court is
not asked to review documents outside the pleadings.
See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir.
1986), vacated on other grounds, 482 U.S. 64 (1987)
(materials aliunde pleadings can be considered on Rule
12(b)(1) motion); 2 James Wm. Moore et al., Moore's Federal
Practice, § 12.30[4], at 39 (3rd ed. 2002) (“A facial attack
questions the sufficiency of the pleading.”). On a motion to .
dismiss a case that presents such a “facial challenge,” a court
must accept all of the complaint’s well- pleaded factual
allegations as true and draw all reasonable inferences from
those allegations in the plaintiff’s favor. United Trans. Union
v. Gateway Western R. Co., 78 F.3d 1208 (7th Cir.1996)
(citing Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993)).

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Appendix B

However, in some instances, a court is required to look
beyond the pleadings and to inquire into facts that are
pertinent to the determination of whether it has subject matter
jurisdiction. Land, 330 U.S. at 735 n.4. Such a “factual
challenge” attacks the existence of subject matter jurisdiction
by looking beyond the pleadings and places the burden on
the plaintiff to prove that facts exist that establish a court’s
jurisdiction. See Federal Election Com. v. National Rifle
Assoc., 553 F. Supp. 1331, 1343 (D.D.C.1983) (“A ‘factual
attack,’ however, challenges the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters
outside the pleadings, such as testimony and affidavits, are
considered. Moreover, a ‘factual attack’ under Rule 12(b)(1)
may occur at any stage of the proceedings, and plaintiff bears
the burden of proof that jurisdiction does in fact exist.”’)
(internal citations omitted).

In this instance Defendant brings a factual challenge to
the existence of subject matter jurisdiction and thus, Plaintiff
bears the burden of presenting proof that jurisdiction properly
lies with this Court.

B. The Federal Tort Claims Act

Absent an express waiver of sovereign immunity,
a plaintiff may not sue the United States in federal court.
See FDIC v. Meyer, 510 U.S. 471 » 474 (1994); see also United
States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic
that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for
jurisdiction.”). The Federal: Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671-80, creates an express limited

22a
Appendix B

waiver of the United States’ sovereign immunity, rendering
the federal government and its agencies liable for certain “tort
claims, in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674(a).
While the FTCA creates the jurisdictional basis for tort claims
brought against the United States, the underlying claims are
determined according to local law.

In enacting the FTCA, Congress explicitly preserved the
federal government’s immunity from suit for claims “based
upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether
or not the discretion involved be abused.” 28 U.S.C. § 2680(a)
| (“discretionary function exception”). A plaintiff must
further demonstrate that the complained of act or omission
| by the United States does not arise in a foreign country.
| See 28 U.S.C. § 2680(k) (“foreign country exception”). If a
claim falls within one of these FTCA exceptions, the Court
does not possess subject matter jurisdiction and must dismiss
the action.

| C. Defendant's motion to dismiss for lack of subject-
matter jurisdiction Fed. R. Civ. P. 12(b)(1).

y Defendant moves to dismiss Counts One and Two of
Plaintiffs’ Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) based on the discretionary function and
the foreign country exceptions to the FTCA. At the outset,

es

23a

Appendix B

the Court must address Plaintiffs’ erroneous assertion that
Defendant’s motion to dismiss Plaintiffs’ complaint pursuant
to Federal Rule of Procedure 12(b)(1) must be treated as a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). Plaintiffs’ Opposition to Defendant’s Motion to
Dismiss Complaint (“Pl.Opp’n”) at 4-6. Plaintiffs contend
that attacks as to jurisdiction pursuant to Rule 12(b)(1)
“should be limited to complaints which establish failure to
exhaust administrative remedies, or which establish that the
tort upon which the compiaint is based falls within one of
the explicit exceptions set out in 28 U.S.C. § 2680(h).””
Pl. Opp’n at 4. Plaintiffs argue that where, as here, a defendant
moves to dismiss a claim based upon the discretionary
function exception or the foreign country exception to the
FTCA, courts should apply the “heightened requirements of
Rule 12(b)(6)” and treat all factual allegations—including
those related to jurisdiction—in the complaint as true. /d.

Plaintiffs’ assertion has little merit. As discussed above,
when a court is required to look beyond the pleadings to
establish its jurisdiction, a plaintiff must through testimony
and affidavits, demonstrate that a case is properly before the
court. See Land, 330 U.S. 735. This Court must review the
allegations in Plaintiffs’ Complaint, and may review facts
outside of the pleadings, in order to determine whether
jurisdiction exists. In this instance, that means examining
facts related to where the alleged negligent actions took place,

1. 28 U.S.C. § 2680(h) creates an exception to the waiver of
immunity for “any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with contract

rights.”

24a
Appendix B

at home or abroad, and whether Defendant’s actions were in
fact discretionary in nature. However, “we do so only to
determine whether the district court has jurisdiction over
those actions, not to prejudge the merits of the case. If the
district court has jurisdiction over the suit, the plaintiff must
still prove that the government’s actions were negligent in
order . . . to prevail.” Cope v. Scott, 45 F.3d 445, 448 (D.C.
Cir. 1995).

The cases cited by Plaintiffs do not indicate otherwise.
Plaintiffs primarily rely on Richardson v. United States,
193 F.3d 545 (D.C. Cir. 1999), for the contention that a
_ motion to dismiss based on the discretionary function must
satisfy the heightened requirements of Rule 12(b)(6). To the
contrary, that case directly found that “no one doubts that
(the plaintiff’s] original complaint would properly be
dismissed for lack of subject matter jurisdiction, because of
the discretionary function exception.” Richardson, 193 F.3d
at 547. The issue in Richardson dealt with whether the district
court had erred in denying a pro se plaintiff a chance to amend
his complaint in order to state a cognizable claim. Nowhere,
does the Richardson court indicate that, in applying the
discretionary function exception, a ccurt is unable to dismiss
a claim pursuant to Rule 12(b)(1) and in fact, recognized
that such dismissal was appropriate as to the plaintiff's
original complaint. Jd.

Further, Plaintiffs contend at the outset that this Court
should not dismiss the action pursuant to Rule 12(b)(1)
because Plaintiffs have not had the opportunity to conduct
sufficient jurisdictional discovery in this case. Pl. Opp’n at
8. Plaintiffs argue that Defendant has failed to produce certain

25a

Appendix B

requested documents that pertain to how the DOS identifies
terrorist threats and how the DOS makes decisions regarding
who to notify regarding such threats. Jd. Without this
information, Plaintiffs argue, “Defendant ... is precluded
from making a factual attack on the threat reaction claims in
this case.” Jd. at 8. ,

Plaintiffs argument is merely an attempt to re-litigate
matters already resolved by this Court and the Magistrate
Judge in this case. Plaintiffs were afforded three months of
discovery on the jurisdictional question, during which time
they had the opportunity to submit interrogatories, depose
witnesses, and request documents from the Defendant.
See December 17, 2001, Order; Civ. No. 99-3274(CKK) at
3, Plaintiffs were permitted to take Federal Rule of Civil
Procedure 30(b)(6) depositions of United States personnel?
regarding “how and where the Department made decisions
concerning security, local guards, training, and management
of threat information.” See October 3, 2001, Order Civ. No.
99-3274(AK) at 6. Magistrate Judge Alan Kay denied
Plaintiffs’ requests for additional discovery and resolved all
of Plaintiffs’ challenges concerning the sufficiency of
Defendant’s compliance with discovery requests. See Jd.
Magistrate Judge Kay subsequently clarified his Order of
October 3; explaining that Defendant was not required to
“produce responses which address both jurisdictional and
factual issues.” October 30, 2001, Order Civ. No. 99-

2. The Court notes that Plaintiffs also had an opportunity to
take five Rule 30(b)(5) depositions on the jurisdictional question in
a related action before this Court, dismissed on March 30, 2002,
Bicharge v. United States, Civ. Action No. 00-1636 (D.D.C. March
30, 2002).

26a

Appendix B-

3274(AK) at 2. Consequently, this Court concludes that
Plaintiffs have had ample opportunity to obtain information
from Defendants concerning the jurisdictiona: issue and
reiterates that “Plaintiffs are not entitled to further
jurisdictional discovery.” Dec. 17, 2001, Order at 3.

1. Discretionary Injunction Exception

The Court will begin its analysis with the discretionary
function exception. All of Plaintiffs’ claims contained in
Counts One and Two, save one, related to the negligence of
the independent contractor, and can be resolved pursuant to
this exception.’

Pursuant to the discretionary function exception, the
United States retains sovereign immunity for any acts taken
by a federal employee that are “based upon the exercise or
performance or the failure to exercise or perform a

3. Plaintiffs, in recognition of the foreign country exception,
have attempted to demonstrate that the injuries and property damage
suffered in Kenya were the result of negligent acts or omissions
committed within the United States. See Cplt. 44 40-62. This type of
claim is known as a “headquarters” claim. See Beattie v. United States,
756 F.2d 91 (D.C. Cir. 1984). However, headquarters claims are
“recognized by this Circuit . . . in such limited circumstances that in
general, ‘unless subject matter jurisdiction can be separately
established for those claims truly arising in a foreign country . . . it
is seldom worth [plaintiffs’] while to try to make a case live or die
on the basis of headquarters claims.’” MacCaskill v. United States,
834 F.Supp. 14, 17 (D.D.C.1993), aff'd without opinion 24 F.3d 1464
(D.C. Cir. 1994) (quoting Beattie, 756 F.2d at 97). The Court for the
purposes of its discussion of the discretionary function analysis will
assume that Plaintiffs have properly alleged a headquarters claim.

27a

Appendix B

discretionary function or duty.” 28 U.S.C. § 2680(a). This
exception applies to governmental acts that “involve an
element of judgment or choice.” United States v. Gaubert,
499 U.S. 315, 323 (1991) (quoting Berkovitz v. United States,
486 U.S. 531 (1988)). The purpose of the exception “is to
prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort,”
Gaubert, 499 U.S. at 323 (internal citations omitted).
In determining the applicability of the discretionary function
exception, the Court undertakes a two part test. First, the
Court must determine whether a federal statute, regulation,
or policy specifically prescribes a government actor’s course
of action. Jd. at 322. In such a case, no discretion is employed
and the only remaining inquiry for the Court is whether the
employee did, or did not, do what was prescribed by the
applicable statute, regulation or policy. See Cope v. Scott,
45 F.2d 445, 448 (D.C. Cir. 1995). Second, if no specific
action is prescribed, the act is discretionary, and the court
must next determine whether the action was of the type
grounded in social, economic, or political policy. Sloan v.
U.S. Dep t of Housing & Urban Dev., 236 F.3d 756, 761 (D.C.
Cir. 2001) (citing Gaubert, 499 U:S. at 323). If an
“established governmental policy, as expressed or implied
by statute, regulation or agency guidelines, allows a
Government agent to exercise discretion, it must be presumed
that the agents’ acts are grounded in policy when exercising
that discretion.” Gaubert, 499 U.S. at 324-325. Once it is
established that the government actions in question are
discretionary in nature and grounded in an appropriate policy,
a court lacks subject matter jurisdiction over claims
predicated upon that discretionary action (or inaction).

28a

Appendix B

Plaintiffs contend that officials in the United States
committed twenty-one negligent acts that were either
non-discretionary or not subject to “policy judgment.”
Pl. Opp’n at 29-30. All of these allegedly negligent acts can
be categorized as either: 1) a failure to provide guidance and
advice on improving security at the Embassy, 2) a failure to
provide security equipment to the Embassy, 3) a failure to
train adequately Embassy personnel and contractors to deal
with various security threats, 4) a failure to warn adequately
Embassy personnel, and others, of potential terrorist threats,
5) an improper classification of the level of security risk at
the Embassy, or 6) falsely leading Embassy personnel to
believe that security analyses had been conducted or would
be conducted. Jd. The Court concludes that each of these
alleged actions fall within the discretionary function
exception to the FTCA.

a. Mandatory vs. Discretionary Conduct

None of the actions about which Plaintiffs complain
involve a failure to abide by the dictates of a statute, guideline
or regulation. Although Plaintiffs repeatedly assert that DOS
officials failed to fulfill “non- discretionary” duties, Pl. Opp’n
15, 22, Plaintiffs fail to identify any relevant statute,
guideline, or regulation that prescribed DOS employees’
course of action related to the security at the Embassy.
Plaintiffs cite documents that either are not guidelines
prescribing a specific course of action, or are guidelines that
do not apply to Plaintiffs’ specific claims. Plaintiffs’ failure
to identify a relevant guideline or regulation is not surprising
as determinations about what security precautions to adopt
at American embassies, and what security information to pass

29a

Appendix B

on, and to whom this information should be given, do not
involve the mechanical application of set rules, but rather
the constant exercise of judgment and discretion.
For instance, the United States Department of State Foreign
Affairs Manual, Diplomatic Security (“FAM”), Def. Mem;
Exhibit 2, instructs, in the “Physical Security Standards”
section, that “[p]roject managers and regional security
officers (RSO’s) should follow all standards to the maximum
extent possible.” Def. Mem; Exhibit 2, 12 FAM 314.1
(emphasis added).* This Manual further instructs that when
full implementation of outlined standards is “impossible or
inappropriate,” foreign service officers should engage in a
process.of “[r]isk management.” Jd. 12 FAM6H 511 .4. This
risk management “process begins with an assessment of the
value of the assets, the degree of a specific type of threat,
and the extent of the vulnerabilities... A decision is then
made as to what level of risk can be accepted and which
countermeasures should be applied. Such a decision involves
a cost-benefit analysis, giving decision makers the ability to
weigh varying security risk levels against the cost of specific
countermeasures.” Jd. Thus, as this document clearly
illustrates, the process of securing an embassy involves
subjective analysis, decisions, and a balancing of benefits; it
does not involve the mechanical application of guidelines or
rules.

4. In Cope, the plaintiff cited a Park Service manual that
established road safety standards “applicable only ‘to the extent
practicable.’ “ 45 F.3d at 450. In response, the Court of Appeals for
the District of Columbia Circuit observed that “this caveat means
that the standards are applicable only when no competing priorities
exist. Such flexibility is the essence of discretion.” 45 F.3d at 450
(emphasis added).

30a

Appendix B

In addition, Plaintiffs attempt to demonstrate that certain
DOS reports establish that the security measures taken prior
to the 1998 attack were “inadequate,” and contained
“identified deficiencies.” Pl]. Opp’n 20-21. However,
Plaintiffs arguments as to the inadequacy or deficiency of
the level of security that in hindsight would have been
desirable on the day of the bombing is merely an attempt to
argue the merits of the case, rather than evidence that
Defendant failed to comply with certain mandatory guidelines
and regulations.’ In sum, none of the actions or instances of
inaction that form the basis of Plaintiffs’ Complaint involve
a failure to perform nondiscretionary duties. Therefore, this
Court turns to the next step in the Gaubert analysis and must
determine whether DOS employees’ alleged actions and
inactions implicated social, political, or economic poncy
considerations. Cope, 45 F.3d at 448-49.

b. Political, Social, and Economic Policy
Considerations

Under the FTCA discretionary function exception, not
all discretionary conduct is exempted; only conduct that is

5. The Court must also note that Plaintiffs frequently cite to
inapplicable or irrelevant guidelines in order to attempt to demonstrate
that mandatory duties exist. For instance, Plaintiffs make a weak
attempt to suggest the existence of “certification requirements,” for
bomb detection equipment. Pl. Opp’n at 20. Yet the document cited
relates to the safety of X-ray devices used by embassy personnel. B.
6085. Similarly, Plaintiffs attempt to suggest that the building’s
windows did not meet DOS security standards. Pl. Opp’n at 21.
Yet the standards cited by Plaintiffs pertain only to newly acquired
or renovated embassy buildings. B. 7691, 9195. The Embassy in
Nairobi was not such a building. B. 3500.

3la

Appendix B

“susceptible to policy judgment and involve[s] an exercise
of political, social or economic judgment” is exempt. Cope
v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (internal citations
omitted). Decision-making based on policy considerations
has been contrasted with “determinations involving the
‘application of objective scientific standards;’ “ the latter are
not protected by sovereign immunity even when they
involve the exercise of discretion. Sloan, 236 F.3d at 765.
However, when “balancing factors” is an integral part of
the decision-making Process, and particularly when this
involves considerations such as how to “allocat[e] funds
among significant project demands,” and how to weigh
inconvenience against “the risk of safety hazards,” decisions
are susceptible to policy judgment. Cope, 45 F.3d at 451;
see also United States v. S.A. Empresa de Viacao Aerea Rio
Grandense ( “Varig Airlines”), 467 U.S. 797, 820 (1984)
(finding that decisions that require the government to
“establish priorities for the accomplishments of its policy
objectives by balancing the objectives sought . . . against such
practical considerations as staffing and funding,” implicate
the discretionary function exception).

Moreover, “it is the nature of the conduct, rather than
the status of the actor,” that governs whether the conduct is
based on policy considerations. Varig Airlines, 467 U.S. at
813. Thus, the fact that security related decisions may not
have been taken by high level government officials is
irrelevant to the question of whether those decisions implicate
economic, social or political policies. Even “day-to-day
‘operational’ decisions” of a federal agency often implicate
policy considerations. Gaubert, 499 U.S. at 332; see also

32a

Appendix B

Sloan v. Dep t of Housing and Urban Development, 236 F.3d
756, 762 (D.C.Cir.2001) (“the discretionary function
exception ... does not apply ‘exclusively to policymaking
or planning functions,’ but rather extends as well to decisions
made at the operational level.”).

The conduct at issue in this case and the decisions
regarding what action to take related to security clearly are
“susceptible to policy analysis” and thus the discretionary
function exception is applicable. Plaintiffs attempt to argue
that decisions regarding whether or not to warn Embassy
employees and Kenyan citizens about a possible terrorist
threat and decisions regarding “how best to secure the
Embassy’s premises” did not implicate political, social or
economic policy considerations. Pl. Opp’nat 37-41. Plaintiffs
argue that Defendant’s actions related to tne alleged security
failures at the Embassy “could not evokesocial wisdom...
political practicality . .. or economic expediency ... Rather,
that conduct implicates negligence ... due care ... and
reasonableness, and fall well outside the confines of
discretionary functions.” P] Opp’n at 40, (quoting Declaration
of J. Jerome Bullock) (omissions in original). However,
Plaintiffs fail to counter Defendant’s specific arguments that
the decisions made by DOS and its empbyees in relation to
how best to secure the Nairobi Embassyimplicated specific
policy concerns.

Decisions regarding how much safety equipment should
be provided to a particular embassy, how much training
should be given to guards and embassy employees, and the
amount of security-related guidance that should be provided
necessarily entails balancing competing demands for funds

33a

Appendix B

and resources. Each individual embassy’s need for security
must be balanced against the need perceived at other
embassies, and the need for security must be balanced against
the need for alternative projects that could consume scarce
resources. Moreover, each of Defendant’s decisions regarding
security involved balancing potential inconvenience to State
Department employees against the perceived security gains
that would result from a safety measure.

Decisions regarding when and how to warn people of
potential terrorist threats similarly involve a balancing of
policy considerations. DOS employees must balance the cost
and inconvenience that a false warning might cause against
the risk that any given threat wil] materialize. Where such a
warning might influence the actions of officials of foreign
governments—as a warning about threats to a United States
embassy likely would-American officials must also consider
the effect that a warning, or the failure to give one, might
have on that foreign government and American relations with
it. Classification of the level of risk facing an embassy
involves choices about what types of threats the United States
considers most worrisome. It also involves determining how
much risk, and what types of risk, should be required before
an embassy is eligible for certain security measures. As risk
Classification makes a statement about conditions in the
country where the embassy is located, it could also influence
United States relations with that country, and therefore be
influenced by the footing on which the United States seeks
to maintain those relations.

It is exactly because such political, economic and social
policy considerations must be balanced that Congress granted

34a

Appendix B

the discretionary authority to the Secretary of State to
“develop and implement. . . policies and programs, including
funding levels and standards, to provide for the security of
the United States Government operations of a diplomatic
nature and foreign government operations of the diplomatic
nature in the United States.” 22 U.S.C. § 4801 (1990)
(Omnibus Diplomatic Security and Antiterrorism Act).
As the Act allows the Secretary to exercise discretion “it must
be presumed that the [Secretary’s] acts are grounded in policy
when exercising that discretion.” Gaubert, 499 U.S. at 324-
325. The decisions made by Defendant regarding the security
of the Embassy and warnings of possible threats are clearly
discretionary in nature and grounded in policy and therefore,
do not fall within the FTCA’s waiver of sovereign immunity.

2. Foreign Country Exception

The FTCA also prohibits suits against the United States
for acts or omissions arising in a territory subject to the
sovereignty of another nation. 28 U.S.C. § 2680(k); United
States v. Spelar, 338 U.S. 217, 219 (1949). Congress
exempted actions arising in foreign countries from the FTCA
because “it was unwilling to subject the United States to
liabilities depending upon the laws of a foreign power.”
Spelar, 338 U.S. at 221. As noted above, while jurisdiction
is determined by the FTCA, the underlying tort claims are
decided based on the local law where the act or omission
occurred.

The United States argues that the acts Plaintiffs complain
of occurred, for all practical purposes, in Kenya, and are

eT en anne ne

35a

Appendix B

therefore not actionable—even if negligent—due to the
foreign country exception to the F TCA’s waiver of immunity.
Def. Mem. at 14-15. With one exception, which the Court
addresses below, this Court need not address the question of
whether Plaintiffs are complaining of acts that took place in
Kenya, or acts that took place in the United States because,
as discussed in Part II.C.1 above, the discretionary function
exemption renders the United States immune from liability
for such alleged acts or omissions, However, the Court
discusses below Plaintiffs’ allegations regarding Defendant’s
liability for the acts and training of local guards as such claims
are not resolved by application of the discretionary function
exception.

Plaintiffs allege that the United States is responsible
under the doctrine of respondeat superior for the negligence
of local guards employed by a private contractor, United
Internal Investigative Services (“US”), retained to provide
Embassy security. Cplt. 19 52, 75, 88. Plaintiffs contend that
the local guards were not properly trained to respond to the
situation that arose on August 8, 1998, and that Defendant is
responsible for this failure to train and the negligent acts of
the local guards. Jd. UIIS contracted with the Embassy in
Nairobi agreeing to provide local guard services for the
Embassy. Def. Mem at 12, Exhibit 3 (UIIS Contract). UIIS’
responsibilities under the contract included providing “basic
training,° firearms qualifications, and annual recertification
training” for the local guards. Def. Mem, Exhibit 3 at 7498.

6. Basic training included training in terrorism and criminality,
training in mission emergency plans, and training in access control.
Def. Mem., Exhibit 3 at 7498-99.

36a
Appendix B

UIIS also hired managers responsible for security force
training and provided security training for Embassy
employees and the local guards. Jd. at 7551. UIIS provided
this training, and supervised the local guards in Nairobi,
Kenya.

The Court is precluded from entertaining Plaintiffs’
claims based on the actions of UIIS and the local guards it
supervised for two reasons. First, the United States is immune
from such claims of negligence pursuant to_the foreign
country exception. It is clear that “torts occurring on
American embassies ... which are located in foreign
countries are barred by the foreign country exception.”
Beattie 756 F.2d at 97. Thus, actions taken by local guards
on the day of the terrorist bombing clearly arose in a foreign
nation and cannot be the subject of a claim brought under
the FTCA. Second, the training, or lack thereof, that Plaintiffs
complain of, also took place in Kenya, and not in the United
States. Plaintiffs fail to demonstrate activities occurring
within the United States that act as a basis for claims based
on the failure to provide proper training to the local guards.

Moreover, the FTCA waiver of immunity does not cover
tortious acts or omissions committed by independent
contractors or their employees. See 28 U.S.C. § 1346
(sovereign immunity is waived only as to acts and omissions
of federal employees; independent contractors are not federal
employees); United States v. Orleans, 425 U.S. 807, 813
(1976). The FTCA waives sovereign immunity for tortious
actions undertaken by “officers or employees of any federal
agency . . . and persons acting on behalf of a federal agency
in an official capacity.” 28 U.S.C. § 2671. A federal agency

37a

Appendix B

is defined as “the executive departments ... independent
establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United
States but does not include any contractor with the United
States.” Id. (emphasis added).

Plaintiffs contend that the United States supervised the
day to day operations of UIIS, and thus, under the “contro]
of physical conduct” test, UIIS was not a contractor with the
United States, but rather an employee. Pl. Opp’n at 24. The
crucial factor in distinguishing between a federal employee
and an independent contractor is whether the Federal
Government has the power to “control the detailed physical
performance of the contractor.” Orleans, 425 U.S. at 814-
815 (quoting Logue v. United States, 412 U.S. 521 (1973)).
Broad supervisory control, even on a daily basis, does not
suffice to demonstrate control over the physical performance
of the contractor. Orleans, 425 U.S. at 817 (finding that the
fact that an independent community agency was required to
comply with extensive government regulations did not create
an employment relationship); see also Gibson vy. United
States, 567 F.2d 1237 (3d Cir. 1977), cert denied, 436 US.
925 (1978) ( “The fact of broad, supervisory control, or even
the potential to exercise detailed control, cannot convert a
contractor into an agent, nor can it be the basis for imposing
vicarious liability on the United States.”). The United States
Supreme Court explained in Logue v. United States, 412 U.S.
521(1973), that guidance from the government or
requirements that a contractor comply with government
regulations, does not establish the type of control necessary
to form an employee—employer relationship under the
FTCA. The Court found that an employee—employer

382

Appendix B

relationship did not exist between the United States and a
local county jail although the jail was required to comply
with Bureau of Prisons’ rules and regulations prescribing
standards of treatment, and although the United States
reserved the right to inspect the jail. Logue, 412 U.S. 521.
Similarly, the Orleans Court concluded that although the
community action agencies at issue in that case were required
to “comply with extensive regulations, which include
employment policies and procedures, lobbying limitations,
accounting and inspection procedures, expenditure
limitations and programmatic limitations and applications
procedures,” the agencies were not “employees” under the
FTCA. Orleans, 425 U.S. at 817-18. The Orleans Court noted
that to find otherwise would “distort well established
concepts of master and servant relationsk:ps and extend the
meaning of the Federal Tort Claims Act beyond the intent of
Congress.” Jd. at 819.

In this instance, it is clear that the United States, while
retaining broad supervisory control over the local guards
pursuant to the contract with UIIS, did not maintain control
over the detailed physical performance of the contract. DOS
regulations clearly state that “day to day activities are to be
managed by and supervised by the contractor.” Def. Reply
Mem. at 18, Exhibit 9, 12 FAM 324.2(a). Plaintiffs assert
that Defendant controlled the activities of the contractor in
that the contract required the contractor to submit the names
and information for each employee hired in order for the
United States to undertake a security check of the potential
employee. Pl. Opp’n at 24-25; Def. Mem, Exh. 3 at 7494.
Additionally, the government contract set forth certain
standards of conduct that the UIIS was required to comply

39a

Appendix B

with, including requiring UIIS to “maintain Satisfactory
standards of employee competency” and to require certain
uniforms approved by the United States. Id. Further, UIIS
needed to ensure that local guards met the United States’
requirements for education, language proficiency and health.
Id. The contract also required UIIS to send the local guards
it hired to orientation, and to provide certain specific training,
including training in which the Embassy Regional Security
Officer (“RSO”) took part. Jd. at 7498. Review of the UIIS
contract, Def. Mem, Exh. 3, makes clear that Plaintiffs have
not demonstrated that Defendant retained control over the
detailed physical performance of the contractor, but rather,
that the contract set forth detailed guidelines and regulations
that the contractor was required to conform with as it
implemented its hiring, supervision and training of Embassy
local guards. As in Orleans, this type of general supervisory
control that requires the contractor to comply with regulations
and guidelines issued by the government, does not create the
type of employee—employer relationship envisioned under
the FTCA. The government may “fix specific and precise
conditions to implement federal objectives” within a contract
with an independent contractor. Orleans, 425 U.S. at 815-16
(finding that while the contractor was “responsible to the
United States for compliance with the specifications of the
contract, or by grant . . . [it was] largely free to select the
means of its implementation.”). Accordingly, the Court finds
that Plaintiffs have not demonstrated that Defendant is liable
for the acts of UIIS and the local guards under UIIS’ control.

Consequently, the Court lacks jurisdiction to entertain
Plaintiffs’ claims contained in Count One and Two of

40a

Appendix B

Plaintiffs’ Complaint and Defendant’s motion to dismiss as
to these counts must be granted.

D. Defendant’s Motion to Dismiss Plaintiffs
International Law Claims for Failure to State a
Claim and for Lack of Subject Matter Jurisdiction.

Count III of Plaintiffs’ Complaint attempts to state a
claim against the United States for violations of “principles
of international law . . . [and] Chapter V of the Constitution
of Kenya...” Cplt. J 100. Plaintiffs assert that the United
States’ action and inaction related to the 1998 bonbing
violate both customary international law’ and the
International Covenant on Civil and Political Rights,
XXX,1967 6 I.L.M. 368 (entered into force Mar. 23 1976,
entered into force for the United States Sept. 8, 1992).
Cplt. ¥ 105. Defendant moves to dismiss Count Three for
failure to state a claim and for lack of subject matter
jurisdiction. Def. Mem. at 18.

1. Kenyan Law and the Kenyan Constitution

Plaintiffs assert that the United States actions “interfered
with the Protection of Fundamental Rights and Freedoms of
the Individual, as set forth in Chapter V of the Constitution
of Kenya, at sections 70, 72, 74, 76, 80, 81 and 82(2).”
Cplt ¥ 100. As discussed at length above, the United States
is immune from suit in the federal courts absent an express
waiver of sovereign immunity. In this instance, Plaintiffs fail

7. Customary international law is defined as “customs and
usages among nations of the world” and it is part of the law of the
United States.

Ala

Appendix B

to identify any express waiver of immunity that would permit
such a suit against the United States based on the laws of
Kenya. Indeed, this is not surprising, as any waiver of
immunity with respect to suits brought under foreign law
would be inconsistent with the policy scheme embedded in
the FTCA; the foreign country exception was added to the
FTCA specifically to prevent plaintiffs from subjecting the
United States to suits brought pursuant to foreign laws.
See Spelar, 338 U.S. at 221 (noting that Congress exempted
actions arising in foreign countries from the FTCA because
“it was unwilling to subject the United States to liabilities
depending upon the laws of a foreign power.”). The United
States has not waived its immunity with respect to suits
brought under foreign law, thus, this Court lacks subject
matter jurisdiction over Plaintiffs’ claims brought under the
Kenyan Constitution or other laws of Kenya.

2. The International Covenant on Civil and
Political Rights

Plaintiffs assert that the United States’ actions before
and after the bombing of the U.S. Embassy in Nairobi violated
articles 3, 6, 7,9, 10, 17, and 26 of the International Covenant
on Civil and Political Rights (““ICCPR”). Cplt. ¥ 105.
As noted above, in order for the United States to be subject
to suit, there must be an express waiver of sovereign
immunity. There 1s no such waiver related to claims brought
pursuant to the ICCPR. When the Senate ratified the ICCPR
it did so with a declaration that articles 1 to 27 were not self-
executing. 138 Cong. Rec. $4784 (daily ed. Apr. 2, 1992).
A treaty that is not self executing requires further action by
Congress to incorporate ii into domestic law and without such

42a

Appendix B

action courts may not enforce such a treaty. See Buell v.
Mitchell, 274 F.3d 337, 372 (6th Cir.2001) (quoting
Restatement (Third) Of Foreign Relations Law § 111 (1987))
(“Courts in the United States are bound to give effect to
international law and to international agreements, except that
a ‘non-self-executing’ agreement will not be given effect as
law in the absence of necessary authority.”). Courts have
uniformly held that the ICCPR is not self-executing and that,
therefore, it does not give rise to a private right of action.
See, e.g., Igartua De La Rosa v. United States, 32 F.3d 8, 10
n.1 (1st Cir.1994) cert. denied, 514 U.S. 1049 (1995)
(“Articles 1 through 27 of the Covenant were not self-
executing, and could not therefore give rise to privately
enforceable rights under United States law”.); Ralk v. Lincoln
County, 81 F.Supp.2d 1372, 1380 (S.D. Ga. 2000) (neither
legislative nor executive branch intended ICCPR to be self-
executing and no private right of action was created);
White v. Paulsen, 997 F. Supp. 1380, 1387 (E.D. Wash. 1998)
(ICCPR not seif-executing treaty that gives rise to private
cause of action); Reaves v. Warden, 2002 U.S. Dist. LEXIS
6280 (M.D. Pa. March 22, 2002) (same); Weaver v. Torres,
2000 U.S. Dist. LEXIS 19529 (D. Md. November 15, 2000)
(dismissing the plaintiff’s claim under the ICCPR because it
does not create a private right of action). Accordingly,
Plaintiffs claim based on the ICCPR must be dismissed for
failure to state a claim and for lack of jurisdiction.

3. Alleged Violations of Customary International

Law
Plaintiffs assert that “the United States is required to
ensure the following rights which have achieved status as

43a

Appendix B

customary international law: avoidance of cruel, inhuman
or degrading treatment or punishment, avoidance of
prolonged arbitrary detention, and avoidance of systematic
racial discrimination.” Cplt. § 103. The Restatement (Third)
of Foreign Relations Law defines customary international
law as the “general and consistent practice of states followed
by them from a sense of legal obligation.” 1 Restatement
(Third) Of Foreign Relations Law § 102(2). Certain
customary international laws rise to the level of “jus cogens”
meaning they are norms that “are recognized by the
international community of states as peremptory [norms],
permitting no derogation.” Jd. at § 102. The Court of Appeals
for the District of Columbia Circuit has noted that not every
violation of international law, even if committed by the
United States, is actionable in a United States court.
Committee of United States Citizens Living in Nicaragua v.
Reagan, 859 F.2d 929, 936 (D.C. Cir. 1988). The Citizens
Living in Nicaragua court makes clear that violations of those
portions of customary international law that have not
achieved jus cogens status are clearly not actionable. Jd.

Plaintiffs have not sufficiently alleged a cause of action
under customary international law. Foremost, Plaintiffs have
failed to indicate what conduct by the United States violated
international law. {t appears from the Complaint that
Plaintiffs’ first allegation regarding “cruel, inhuman, or
degrading treatment or punishment,” Cplt. J 103, refers to
the United States’ failure to warn Kenyans of a threat whose
validity was in doubt, exclusion of Kenyans from areas
around the bombing where rescue and cleanup efforts were
ongoing, and a failure to provide the same assistance to
Kenyans as the United States provided to its own nationals.

44a

Appendix B

The suggestion that such actions rise to a violation of
international norms against cruel, inhuman, or degrading
punishment lacks merit.

Plaintiffs also allege that the United States violated a
customary international law norm against “prolonged
arbitrary detention.” Jd. This accusation clearly refers to the
fact that after the bombing, “Kenyans were denied access”
to certain areas, “and their movements and actions were
restricted by the United States.” Cplt. | 77. Assuming
arguendo that such action would qualify as “detention,”
Plaintiffs have still failed to allege that the action was
“prolonged,” or “arbitrary.” Finally, plaintiffs allege that the
United States violated customary international law norms
against “systematic racial discrimination” in its handling of
events in Kenya before and after the bombing. Jd. {| 103.
However, Plaintiffs fail to allege facts that would demonstrate
that the United States’ decisions regarding the provision of
medical assisteace to American nationals but not to Kenyans,
rose to the level of systematic discrimination.

In sum, Plaintiffs fail to allege even the basic elements
of a violation of the above mentioned international customs.
Accordingly, the Court will dismiss Plaintiff’s customary
international law claims pursuant to Federal Rule of Civil
Procedure 12(b)(6).

E. Constructive Trust/Permanent Injunction

Count Four of Plaintiffs’ Complaint requests that this
Court require the United States to hold any seized assets and
funds of Osama bin Laden and al Qaeda in a constructive
trust for the “use, benefit, and enjoyment of the plaintiffs

45a -

Appendix B

and prospective class members.” Cplt. | 109. “A constructive
trust is a remedy that a court devises after litigation,” United
States v. BCCI Holdings, 46 F.3d 1185, 1190 (D.C. Cir. 1995),
“to redress the injustice that would otherwise occur when
one person has fraudulently or wrongfully obtained the
property of another,” United States v. Taylor, 867 F.2d 700,
703 (D.C. Cir. 1989). 4s this Court discussed in Mwani v.
United States, Civ. Action No. 99-125 (Nov. 19, 1999),
a constructive trust is not an independent cause of action. As
this Court finds that dismissal of Counts One, Two and Three
are appropriate, there is no basis on which to award injunctive
relief or a constructive trust.

Political Question Doctrine

This Court, having concluded that it lacks subject matter
jurisdiction over Plaintiffs’ claims need not reach the issue
of whether the Political Question doctrine bars this Court’s
review of the claims.

III. CONCLUSION

Based on the foregoing, the Court finds that Plaintiffs
have failed to establish that this Court has subject matter
jurisdiction over the claims against the United States alleged
in Counts one and two of their complaint. Having failed tc
do so, the Court concludes that these Counts shall be
dismissed with respect to Defendant United States for lack
of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1). The Court also finds that Plaintiffs
have failed to state a cognizable claim under international
law. Therefore, Plaintiffs’ Count Three shall be dismissed

46a
Appendix B

with respect to Defendant United States pursuant to Federal
Rule of Civil Procedure 12(b)(6). Finally, this Court finds
that the because 2 * equest for a constructive trust is not an
independent caus2 .. action, Count Four must also be
dismissed. Accordingly, Defendant’s motion to dismiss is
granted. An appropriate Order accompanies this
Memorandum Opinion.

Dated: July 29, 2002
s/ Colleen Kollar-Kotelly

Colleen Kollar-Kotelly
United States District Judge

47a

Appendix B

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

Civil Action No. 99CV3274 (CKK)

MERINA M. MACHARIA, et al.,

Plaintiffs,
V.
UNITED STATES OF AMERICA,
Defendant.
ORDER

For the reasons set forth in the accompanying
Memorandum Opinion, it is, this 29 of July, 2002, hereby

ORDERED that Defendant the United States of
America’s motion to dismiss is GRANTED; and it is further

ORDERED that this case is DISMISSED
SO ORDERED.
s/ Colleen Kollar-Kotelly

Colleen Kollar-Kotelly
United States District Judge

48a

APPENDIX C — RELEVANT STATUTES
AND CONVENTIONS

UNITED STATES CODE ANNOTATED
TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE
PART VI—PARTICULAR PROCEEDINGS
CHAPTER 171—TORT CLAIMS PRUCEDURE

28 U.S.C. § 267i
§ 2671. Definitions

As used in this chapter and sections 1346(b) and
2401(b) of this title, the term “Federal agency”
includes the executive departments, the judicial
and legislative branches, the military departments,
independent establishments of the United States,
and corporations primarily acting as instrument-
alities or agencies of the United States, but does
not include any contractor with the United States.

“Employee of the government” includes (1) officers
or employees of any federal agency, members of
the military or naval forces of the United States,
members of the National Guard while engaged in
training or duty under section 115, 316, 502, 503,
504, or 505 of title 32, and persons acting on
behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the
United States, whether with or without
compensation, and (2) any officer or employee of
a Federal public defender organization, except
when such officer or employee performs
professional services in the course of providing
representation under section 3006A of title 18.

49a

Appendix C

“Acting within the scope of his office or
employment”, in the case of a member of the
military or naval forces of the United States or a
member of the National Guard as defined
in section 101(3) of title 32, means acting in line
of duty.

50a
Appendix C
28 U.S.C. § 2674

§ 2674. Liability of United States

The United States shall be liable, respecting the
provisions of this title relating to tort claims,
in the same manner and to the same extent as
a private individual under like circumstances,
but shall not be liable for interest prior to judgment
or for punitive damages.

If, however, in any case wherein death was caused,
the law of the place where the act or omission
complained of occurred provides, or has been
construed to provide, for damages only punitive
in nature, the United States shall be liable for
actual or compensator; damages, measured by the
pecuniary injuries resulting from such death to the
persons respectively, for whose benefit the action
was brought, in lieu thereof.

With respect to any claim unde~ this chapter,
the United States shall be entitled to assert any
defense based upon judicial or legislative
immunity which otherwise would have been
available to the employee of the United States
whose act or omission gave rise to the claim,
as well as any other defenses to which the
United States is entitled.

Sla

Appendix C

With respect to any claim to which this section
applies, the Tennessee Valley Authority shall be
entitled to assert any defense which otherwise
would have been available to the employee based
upon judicial or legislative immunity, which
otherwise would have been available to the
employee of the Tennessee Valley Authority whose
act or omission gave rise to the claim as well as
any other defenses to which the Tennessee Valley
Authority is entitled under this chapter.

52a
Appendix C
28 U.S.C.A. § 2680

§ 2680. Exceptions

The provisions of this chapter and section 1346(b)
of this title shall not apply to—

(a) Any claim based upon an act or
omission of an employee of the Government,
exercising due care, in the execution of a
statute or regulation, whether or not such
statute or regulation be valid, or based upon
the exercise or performance or the failure to
exercise or perform a discretionary function
or duty on the part of a federal agency or an
employee of the Government, whether or not
the discretion involved be abused.

(b) Any claim arising out of the loss,
miscarriage, or negligent transmission of
letters or postal matter.

(c) Any claim arising in respect of
the assessment or collection of any tax or
customs duty, or the detention of any goods,
merchandise, or other property by any
officer of customs or excise or any other
law enforcement officer, except that the
provisions of this chapter and section 1346(b)
of this title apply to any claim based on injury

‘ or loss of goods, merchandise, or other

53a

Appendix C

property, while in the possession of any
officer of customs or excise or any other law
enforcement officer, if—

(1) the property was seized for the
purpose of forfeiture under any provision
of Federal law providing for the forfeiture
of property other than as a sentence
imposed upon conviction of a criminal
offense;

(2) the interest of the claimant was
not forfeited;

(3) the interest of the claimant was
not remitted or mitigated (if the property
was subject to forfeiture); and

(4) the claimant was not convicted
of a crime for which the interest of the
claimant in the property was subject to
forfeiture under a Federal criminal
forfeiture law .. .'

(d) Any claim for which a remedy is
provided by sections 741-752, 781-790 of
Title 46, relating to claims or suits in
admiralty against the United States.

1. So in original. Second period probably should not appear.

54a

Appendix C

(e) Any claim arising out of an act or
omission of any employee of the Government
in administering the provisions of sections 1-
31 of Title 50, Appendix.

(f) Any claim for damages caused by the
smposition or establishment of a quarantine
by the United States.

[(g) Repealed. Sept. 26, 1950, c. 1049,
§ 13(5), 64 Stat. 1043.]

(h) Any claim arising out of assault,
battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or inter-
ference with contract rights: Provided,
That, with regard to acts or omissions of
investigative or law enforcement officers of
the United States Government, the provisions
of this chapter and section 1346(b) of this title
shall apply to any claim arising, on or after
the date of the enactment of this proviso,
out of assault, battery, false imprisonment,
false arrest, abuse of process, or malicious
prosecution. For the purpose of this subsection,
“investigative or law enforcement officer”
means any officer of the United States who
is empowered by law to execute searches,
to seize evidence, or to make arrests for
violations of Federal law.

55a

Appendix C

(i) Any claim for damages caused by the
fiscal operations of the Treasury or by the
regulation of the monetary system.

(j) Any claim arising out of the combatant
activities of the military or naval forces, or
the Coast Guard, during time of war.

(k) Any claim arising in a foreign
country.

(1) Any claim arising from the activities
of the Tennessee Valley Authority.

(m) Any claim arising from the activities
of the Panama Canal Company.

(n) Any claim arising from the activities
of a Federal land bank, a Federal intermediate
credit bank, or a bank for cooperatives.

56a

Appendix C

The United Nations
INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS

PREAMBLE
The States Parties to the present Covenant,

Considering that, in accordance with the principles
proclaimed in the Charter of the United Nations, recognition
of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of
freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity
of the human person,

Recognizing that, in accordance with the Universal
Declaration of Human Rights, the ideal of free human beings
enjoying civil and political freedom and freedom from fear
and want can only be achieved if conditions are created
whereby everyone may enjoy his civil and political nghts,
as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the
United Nations to promote universal respect for, and
observance of, human rights and freedoms,

Realizing that the individual, having duties to other
individuals and to the community to which he belongs, is
under a responsibility to strive for the promotion and
observance of the rights recognized in the present Covenant,

Agree upon the following articles:

57a

Appendix C

PART I

Article 1

1

ae

All peoples have the night of self-determination. By virtue
of that right they freely determine their political status and
freely pursue their economic, social and cultural
development.

All peoples may, for their own ends, freely dispose of
their natural wealth and resources without prejudice to
any obligations arising out of international economic
co-operation, based upon the principle of mutual benefit,
and international law. In no case may a people be deprived
of its own means of subsistence.

The States Parties to he present Covenant, including those
having responsibility for the administration of Non-
Self- Governing and Trust Territories, shall promote the
realization of the right of self-determination, and shall
respect that right, in conformity with the provisions of the

Charter of the United Nations.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory
<3 and subject to its jurisdiction the rights recognized in the

present Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other
status.

58a
Appendix C

2. Where not already provided for by existing legislative or
other measures, each State Party to the present Covenant
undertakes to take the necessary steps in accordance with
its constitutional processes and with the provisions of the
present Covenant, to adopt such legislative or other measures
as may be necessary to give effect to the rights recognized
in the present Covenant.

3. Each State Party to the present Covenant undertakes:

1. To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity; to
ensure that any person claiming such a remedy shall have
his rights thereto determined by competent judiciai,
administrative or legislative authorities, or by any other
competent authority provided for by the legal system of
the State, and to develop the possibilities of judicial
remedy,

2. To ensure that the competent authorities shall enforce
such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure
the equal right of men and women to the enjoyment of all
civil and political rights set forth in the present Covenant.

59a

Appendix C

Article 4

l.

In time of public emergency which threatens the life of
the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations
under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations
under international law and do not involve discrimination
solely on the ground of race, colour, sex language,
religion or social origin.

No derogation from articles 6, 7, 8 (paragraphs 1 and
2),11, 15,16 and 18 may be made under this provision.

. Any State Party to the present Covenant availing itself

of the right of derogation shall immediately inform the
other States Parties to the present Covenant, through the
intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated
and of the reasons by which it was actuated. A further
communication shall be made, through the same
intermediary, on the date on which it terminates such
derogation.

Article 5

a

Nothing in the present Covenant may be interpreted as
implying for any State, group or person any right to
engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognized

ae

ee a ——

60a
Appendix C

herein or at their limitation to a greater extent than is
provided for in the present Covenant.

There shall be no restriction upon or derogation from any
of the fundamental human rights recognized or existing
in any State Party to the present Covenant pursuant to
law, conventions, regulations or custom on the pretext
that the present Covenant does not recognize such rights
or that it recognizes them to a lesser extent.

PART III

Article 6

ie

Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily
deprived of his life.

In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most
serious crimes in accordance with the law in force at the
time of the commission of the crime and not contrary to
the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the
Crime of Genocide. This penalty can only be carried out
pursuant to a final judgment rendered by a competent
court.

When deprivation of life constitutes the crime of
genocide, it is understood that nothing in this article shall
authorize any State Party to the present Covenant to
derogate in any way from any obligation assumed under

6la
Appendix C

the provisions of the Convention on the Prevention and
Punishment of the Crime of Genocide.

. Anyone sentenced to death shall have the right to seek
pardon or commutation of the sentence. Amnesty, pardon
or commutation of the sentence of death may be granted
in all cases.

. Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age and
shall not be carried out on pregnant women.

. Nothing in this article shall be invoked to delay or to
prevent the abolition of capital punishment by any State
Party to the present Covenant.

‘Article 7

No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall
be subjected without his free consent to medical or scientific
experimentation.

Article 8

. Noone shall be held in slavery; slavery and the slave-trade
in all their forms shall be prohibited.

~

2. No one shall be held in servitude.

‘

1.

62a

Appendix C

No one shall be required to perform forced or
compulsory labour;

Paragraph 3(a) shall not be held to preclude, in
countries where imprisonment with hard labour may
be imposed as a punishment for a crime, the
performance of hard labour in pursuance of a sentence
to such punishment by a competent court;

For the purpose of this paragraph the term “forced or
compulsory labour” shall not include:

L.

~

Any work or service, not referred to in
subparagraph (b), normally required of a person
who is under detention in consequence of a lawful
order of a court, or of a person during conditional
release from such detention;

Any service of a military character and, in
countries where conscientious objection is
recognized, any national service required by law
of conscientious objectors;

. Any service exacted in cases of emergency or

calamity threatening the life or well-being of the
community;

Any work or service which forms part of normal
civil obligations.

63a

Appendix C

Article 9

1.

Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are
established by law.

Anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.

Anyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release.
It shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject
to guarantees to appear for trial, at any other stage of the
judicial proceedings, and, should occasion arise, for
execution of the judgment.

Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay
on the lawfulness of his detention and order his release
if the detention is not lawful.

. Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation.

64a

Appendix C

Article 10 \

1. All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the
human person.

1. Accused persons shall, save in exceptional
circumstances, be segregated from convicted persons
and shall be subject to separate treatment appropriate
to their status as unconvicted persons;

2. Accused juvenile persons shall be separated from
adults and brought as speedily as possible for
adjudication.

3. The penitentiary system shall comprise treatment of
prisoners the essential aim of which shall be their
reformation and social rehabilitation. Juvenile offenders
shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to
fulfill a contractual obligation.

Article 12

1. Everyone lawfully within the territory ofa State shall, within
that territory, have the right to liberty of movement and
freedom to choose his residence.

65a

Appendix C

2. Everyone shall be free to leave any country, including his

own.

The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are
necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms
of others, and are consistent with the other rights recognized
in the present Covenant.

No one shall be arbitrarily deprived of the right to enter his
own country.

Article 13

An alien lawfully in ‘he territory of a State Party to the present
Covenant may expelled therefrom only in pursuance of a
decision reached in accordance with law and shall, except where
compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have
his case reviewed by, and be represented for the purpose before,
the competent authority or a person or persons especially
designated by the competent authority.

Article 14

a.

All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him,
or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established
by law. The Press and the public may be excluded from
all or part of a trial for reasons of morals, public order

66a

Appendix C

(ordre public) or national security in a democratic society,
or when the interest of the private lives of the parties so
requirés, of to the extent.strictly necessary in the opinion
of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgment
rendered in a criminal case or in a suit at law shall
he made public except where the interest of juvenile
persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.

. Everyone charged with a criminal offence shall have the

right to be presumed innocent until proved guilty
according to law.

. Inthe determination of any criminal charge against him,

everyone shall be entitled to the following minimum
guarantees, in full equality:

1. To be informed promptly and in detail in a language
which he understands of the nature and cause of the
charge against him;

2. To have adequate time and facilities for the
preparation of his defence and to communicate with
counsel of his own choosing;

3. To be tried without undue delay;

4. To be tried in his presence, and to defend himself in
person or through legal assistance of his own
choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance

67a

Appendix C

assigned to him, in any case where the interests of
justice so require, — and without payment by him in
any such case if he does not have sufficient means to
pay for it;

5. To examine, or have examined, the witnesses against
him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as
witnesses against him;

6. To have the free assistance of an interpreter if he
cannot understand or speak the language used in court;

7. Not to be compeiled to testify against himself or to -
confess guilt.

4. In the case of juvenile persons, the procedure shall be
such as will take account of their age and the desirability
of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher
tribunal according to law.

6. When a person has by a final decision been convicted of
a criminal offence and when subsequently his conviction
has been reversed or he has been pardoned on the ground
that a new or newly discovered fact shows conclusively
that there has been a miscarriage of justice, the person
who has suffered punishment as a result of such
conviction shall be compensated according to law, unless
it is proved that the non-disclosure of the unknown fact
in time is wholly or partly attributable to him.

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Appendix C

7. No one shall be liable to be tried or punished again for
an offence far which he has already been finally convicted
or acquitted in accordance with the law and penal
procedure of each country.

Article 15

* No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence, under national or international law, at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time when
the criminal offence was committed. if, subsequent to the
commission of the offence, provision is made by law for the
imposition of a lighter penalty, the offender shall benefi

thereby.

¢ Nothing in this article shall prejudice the trial and
punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to
the general principles of law recognized by the community
of nations.

~

Article 16

Everyone shall have the right to recognition everywhere as a
person before the law.

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Appendix C

Article 17

l.

No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour
and reputation.

Everyone has the right to the protection of the law against
such interference or attacks.

Article 18

1.

\

Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others
and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his
choice.

Freedom to manifest one’s religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health,
or morals or the fundamental rights and freedoms of
others.

The States Parties to the present Covenant undertake to
have respect for the liberty of parents and, when
applicable, legal guardians to ensure the religious and
moral education of their children in conformity with their
own convictions.

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Appendix C

Article 19

-

Everyone shall have the right to hold opinions without
interference.

Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.

The exercise of the rights provided for in paragraph 2
of this article carries with it special duties and
responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such ws are provided
by law and are necessary:

1. For respect of the rights or reputations of others;

2. For the protection of national security or of public
order (ordre public), or of public health or morals.

Article 20

. Any propaganda for war shall be prohibited by law.

Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.

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Appendix C

Article 21

The right of peaceful assembly shall be recognized.
No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and
which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre
public), the protection of public health or morals or the
protection of the rights and freedoms of others.

Article 22

l.

Everyone shall have the right to freedom of association
with others, including the right to form and join trade
unions for the protection of his interests.

No restrictions may be placed on the exercise of this right
other than those which are prescribed by law and which
are necessary in a democratic society in the interests of
national security or public safety, public order (ordre
public), the protection of public health or morals or the
protection of the rights and freedoms of others. This
article shall not prevent the imposition of lawful
restrictions on members of the armed forces and of the
police in their exercise of this right.

Nothing in this article shall authorize States Parties to
the International Labour Organization Convention of
1948 concerning Freedom of Association and Protection
of the Right to Organize to take legislative measures
which would prejudice, or to apply the law in such a
manner as to prejudice, the guarantees provided for in
that Convention.

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Appendix C

Article 23

l.

The family is the natural and fundamental group unit of
society and is entitled to protection by society and the
State.

The right of men and women of marriageable age to marry
and to found a family shall be recognized.

No marriage shall be entered into without the free and
full consent of the intending spouses.

States Parties to the present Covenant shall take
appropriate steps to ensure equally of rights and
responsibilities of spouses as to marriage, during marriage
and at its dissolution. In the case of dissoluticn, provision
shall be made for the necessary protection of any children.

Article 24

i.

Every child shall have, without any discrimination as to
race, colour, sex, language, religion, national or social
origin, property or birth, the right to such measures of
protection as are required by his status as a minor, on the
part of his family, society and the State.

Every child shall be registered immediately after birth
and shall have a name.

3. Every child has the right to acquire a nationality.

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Appendix C
Article 25

Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions:

1. To take part in the conduct of public affairs, directly or
through freely chosen representatives;

2. To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression
of the will of the electors;

3. To have access, on general terms of equality, to public
service in his country.

Article 26

All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status. .

Article 27

In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language.

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Appendix C

PART IV

Article 28

l.

There shall be established a Human Rights Committee
(hereafter referred to in the present Covenant as the
Committee). It shall consist of eighteen members and
shall carry out the functions hereinafter provided.

The Committee shall be composed of nationals of the
States Parties to the present Covenant who shall be
persons of high moral character and recognized
competence in the field of human rights, consideration
being given to the usefulness of the participation of some
persons having legal experience.

. The members of the Committee shall be elected and shall

serve in their personal capacity.

Article 29

1.

The members of the Committee shall be elected by secret
ballot from a list of persons possessing the qualifications
prescribed in article 28 and nominated for the purpose
by the States Parties to the present Covenant.

. Each State Party to the present Covenant may nominate

not more than two persons. These persons shall be
nationals of the nominating State.

3. A person shall be eligible for renomination.

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Appendix C

Article 30

“ei

The initial election shall be held no later than six months
after the date of the entry into force of the present
Covenant.

At least four months before the date of each election
to the Committee, other than an election to fill a
vacancy declared in accordance with article 34, the
Secretary-General of the United Nations shall address a
written invitation to the States Parties to the present
Covenant to submit their nominations for membership
of the Committee within three months.

The Secretary-General of the United Nations shall prepare
a list in alphabetical order of all the persons thus
nominated, with an indication of the States Parties which
have nominated them, and shall submit it to the States
Parties to the present Covenant no later than one month
before the date of each election.

Elections of the members of the Committee shall be held
at a meeting of the States Parties to the present Covenant
convened by the Secretary-General of the United Nations
at the Headquarters of the United Nations. At that
meeting, for which two thirds of the States Parties to the
present Covenant shall ccnstitute a quorum, the persons
elected to the Committee shall be those nominees who
obtain the largest number of votes and an absolute
majority of the votes of the representatives of States
Parties present and voting.

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Appendix C

Article 31

1.

The Committee may not ‘nclude more than one national
of the same State.

In the election of the committee, consideration shall
be given to equitable geographical distribution of
membership and to the representation of the different
forms of civilization and of the principal legal systems.

Article 32

l.

The members of the Committee shall be elected for a
term of four years. They shall be eligible for re-election
if renominated. However, the terms of nine of the
members elected at the first election shall expire at the
end of two years; immediately after the first election, the
names of these nine members shall be chosen by lot by
the chairman of the meeting referred to in article 30,
paragraph 4.

Elections at the expiry of office shall be held in
accordance with the preceding articles of this part of the
present Covenant.

Article 33

1.

If, in the unanimous opinion of the other members, a
member of the Committee has ceased to carry out his
functions for any cause other than absence of a temporary
character, the Chairman of the Committee shall notify
the Secretary-General of the United Nations, who shall
then declare the seat of that member to be vacant.

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Appendix C

2. In the event of the death or the resignation of a member
of the Committee, the Chairman shall immediately notify
the Secretary-General of the United Nations, who shall
declare the seat vacant from the date of death or the date
on which the resignation takes effect.

Article 34

1. When a vacancy is declared in accordance with article
33 and if the term of office of the member to be replaced
does not expire within six months of the declaration of
the vacancy, the Secretary-General of the United Nations
shall notify each of the States Parties to the present
Covenant, which may within two months submit
nominations in accordance with article 29 for the purpose
of filling the vacancy.

2. The Secretary-General of the United Nations shall prepare
a list in alphabetical order of the persons thus nominated
and shall submit it to the States Parties to the present
Covenant. The election to fill the vacancy shall then take
place in accordance with the relevant provisions of this
part of the present Covenant.

3. A member of the Committee elected to fill a vacancy
declared in accordance with article 33 shall hold office
for the remainder of the term of the member who vacated
the seat on the Committee under the provisions of that
article.

78a
Appendix C

Article 35

The members of the Committee shall, with the approval of
the General Assembly of the United Nations, receive
emoluments from United Nations resources on such terms
and conditions as the General Assembly may decide, having
regard to the importance of the Committee’s responsibilities.

Article 36

The Secretary-General of the United Nations shall provide
the necessary staff and facilities for the effective performance
of the functions of the Committee under the present
Covenant.

Article 37

1. The Secretary-General of the United Nations shall
convene the initial meeting of the Committee at the
Headquarters of the United Nations.

2. After its initial meeting, the Committee shall meet at such
time as shall be provided in its rules of procedure,

3. The Committee shall normally meet at the Headquarters
of the United Nations or at the United Nations Office at

Geneva.

79a
Appendix C

Article 38

Every member of the Committee shall, before taking up his
duties, make a solemn declaration in open committee that he
will perform his functions impartially and conscientiously.

Article 39

1. The Committee shall elect its officers for a term of two
years. They may be re-elected.

2. The Committee shall establish its own rules of procedure,
but these rules shall provide, inter alia, that:

‘

1. Twelve members shall constitute a quorum;

2. Decisions of the committee shall be made by a
majority vote of the members present.

Article 40

1. The States Parties to the present Covenant undertake to
submit reports on the measures they have adopted which
give effect to the rights recognized herein and on the
progress made in the enjoyment of those rights:

1. Within one year of the entry inte force of the present
Covenant for the States Parties concerned;

2. Thereafter whenever the Committee so requests.

80a
Appendix C

All reports shall be submitted to the Secretary-General
of the United Nations, who shall transmit them to the
Committee for consideration. Reports shall indicate
the factors and difficulties, if any, affecting the
implementation of the present Covenant.

. The Secretary-General of the United Nations may, after

consultation with the Committee, transmit to the
specialized agencies concerned copies of such parts of
the reports as may fall within their field of competence.

The Committee shall study the reports submitted by the
States Parties to the present Covenant, It shall transmit
its reports, and such general comments as it may consider
appropriate, to the States Parties. The Committee may
also transmit to the Economic and Social Council these
comments along with the copies of the reports it has
received from States Parties to the present Covenant.

. The States Parties to the present Covenant may submit

to the Committee observations on any comments that may
be made in accordance with paragraph 4 of this article.

Article 41

l.

A State Party to the present Covenant may at any time
declare under this article that it recognizes the competence
of the Committee to receive and consider communications
to the effect that a State Party claims that another State
Party is not fulfilling its obligations under the present
Covenant. Communications under this article may be
received and considered only if submitted by a State Party

8la

Appendix C

which has made a declaration recognizing in regard
to itself the competence of the Committee. No
communication shall be received by the Committee if it
concerns a State Party which has not made such a
declaration. Communications received under this article
shall be dealt with in accordance with the following
procedure:

1.

If a State Party to the present Covenant considers that
another State Party is not giving effect to the
provisions of the present Covenant, it may, by written
communication, bring the matter to the attention of
that State Party. Within three months after the receipt
of the communication, the receiving State shall afford
the State which sent the communication an
explanation or any other statement in writing
clarifying the matter, which should include, to the
extent possible and pertinent, reference to domestic
procedures and remedies taken, pending, or available
in the matter.

If the matter in not adjusted to the satisfaction of both
States Parties concerned within six months after
the receipt by the receiving State of the initial
communication, either State shall have the right to refer
the matter to the Committee, by notice given to the
Committee and to the other State.

The Committee shall deal with a matter referred to it
cy after it has ascertained that all available domestic
remedies have been invoked and exhausted in the mailer,
in conformity with the generally recognized principles -

82a

Appendix C

of international law. This shall not be the rule where the
application of the remedies is unreasonably prolonged.

. The Committee shall hold closed meetings when

examining communications under this article.

. Subject to the provisions of subparagraph (c), the

Committee shall make available its good offices to the
States Parties concerned with a view to a friendly
solution of the matter on the basis of respect for human
rights and fundamental freedoms as recognized in the
present Covenant.

. Inany matter referred to it, the Committee may call upon

the States Parties concerned, referred to in subparagraph
(b), to supply any relevant information.

. The States Parties concerned, referred to in subparagraph

(b), shall have the right to be represented when the matter
is being considered in the Committee and to make
submissions orally and/or in writing.

. The Committee shall, within twelve months after the

date of receipt of notice under subparagraph (b), submit
a report: |

1. Ifasolution within the terms of subparagraph (e) is
reached, the Committee shall confine its report to a
brief statement of the facts and of the solution
reached;

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Appendix C

2. Ifasolution within the terms of subparagraph (e) is
not reached, the Committee shall confine its report
to a brief statement of the facts the written
submissions and record of the oral submissions made
by the States Parties concerned shall be attached to
the report.

In every matter, the report shall be communicated
to the States Parties concerned.

2. The provisions of this article shall come into force

when ten States Parties to the present Covenant have
made declarations under paragraph 1 of this article. Such
declarations shall be deposited by the States Parties with
the Secretary-General of the United Nations, who shall
transmit copies thereof to the other States Parties. A
declaration may be withdrawn at any time by notification to
the Secretary-General. Such a withdrawal shall not prejudice
the consideration of any matter which is the subject of a
communication already transmitted under this article; no
further communication by any State Party shall be received
after the notification of withdrawal of the declaration has
been received by the Secretary-General, unless the State
Party concerned has made a new declaration.

Article 42

1. If a matter referred to the Committee in accordance
with article 41 is not resolved to the satisfaction of
the States Parties concerned, the Committee may, with

~

eater nena iii een itil inate A ee eens

84a.

Appendix C

the prior consent of the States Parties concerned,
appoint an ad hoc Conciliation Commission
(hereinafter referred to as the Commission). The good
offices of the Commission shall be made available to
the States Parties concerned with a view to an
amicable solution of the matter on the basis of respect
for the present Covenant;

2. The Commission shall consist of five persons
acceptable to the States Parties concerned. If the States
Parties concerned fail to reach agreement within three
months on all or part of the composition of the
Commission, the members of the Commission
concerning whom no agreement has been reached
shall be elected by secret ballot by a two-thirds
majority vote of the Committee from among its
members.

2. The members of|\the Commission shall serve in their
personal capacity. They shall not be nationals of the States
Parties concerned, or of a State not party to the present
Covenant, or of 4 State Party which has not made a
declaration under Article 41.

3. The Commission shall elect its own Chairman and adopt
its own rules of procedure.

4. The meetings of the Commission shall normally be held
at the Headquarters of the United Nations or at the United
Nations Office at Geneva. However, they may be held at
such other convénient places as the Commission may
determine in consultation with the Secretary-General of
the United Nations and the States Parties concerned.

5. The secretariat provided in accordance with article 36

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Appendix C

shall also service the commissions appointed under this
article.

6. The information received and collated by the Committee
shall be made available to the Commission and the

Commission may call upon the States Parties concerned

to supply any other relevant information.

7. When the Commission has fully considered the matter,
but in any event not later than twelve months after having
been seized of the matter, it shall submit to the Chairman
of the Committee a report for communication to the States
Parties concerned:

1.

If the Commission is unable to complete its
consideration of the matter within twelve months, it
shall confine its report to a brief statement of the status
of its consideration of the matter.

If an amicable solution to the matter on the basis of
respect for human rights as recognized in the present
Covenant is reached, the Commission shall confine
its report to a brief statement of the facts and of the
solution reached;

If a solution within the terms of subparagraph (b) is
not reached, the Commission’s report shall embody
its findings on all questions of fact relevant to the
issues between the States Parties concerned, and its
views on the possibilities of an amicable solution of
the matter. This report shall also contain the written

10.

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Appendix C

submissions and a record of the oral submissions
made by the States Parties concerned;

. If the Commission’s report is submitted under
subparagraph (e), the States Parties concerned shall,
within three months of the receipt of the report, notify
the Chairman of the Committee whether or not they
accept the contents of the report of the Commission.

The provisions of this article are without prejudice to
the responsibilities of the Committee under article 41.

The States Parties concerned shall share equally all the
expenses of the members of the Commission in
accordance with estimates to be provided by the
Secretary-General of the United Nations.

The Secretary-General of the United Nations shall be
empowered to pay the expenses of the members of the
Commission, if necessary, before reimbursement by the
States Parties concerned, in accordance with paragraph
9 of this article.

Artic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2273%3A2. Public record. Not legal advice.