UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

______________________________________ ) 
ADELLA CHIMINYA TACHIONA, et al., )) 
 ) 
                                           PLANTIFFS, ) 
 ) 
                                            v. ) 00 Civ 6666 (VM)
 ) 
ROBERT GABRIEL MUGABE, STAN MUDENGE, JONATHAN MOYO, et al. )) 
 ) 
                                           DEFENDANTS, ) 
 ) 
______________________________________ ) 
  

 

PLAINTIFFS’ SURREPLY BRIEF TO THE GOVERNMENT’S MEMORANDUM OF LAW IN REPLY TO PLAINTIFF’S ANSWERING BRIEF

 

THEODORE M. COOPERSTEIN, P.C.1815 Pennsylvania Ave., N.W.Suite 501Washington D.C. 20006  HOGAN & HARTSON L.L.P.Paul B. SweeneyLauren E. Rosenblatt100 Park AvenueNew York, New York 10017(212) 916-7222
COOPER & KIRK, P.L.L.C.Hamish P.M. Hume1500 K Street, N.W.Washington, D.C. 20005July 2, 2001          andWilliam J. BowmanMary Ellen CallahanJohn J. ClasbyShelly L. McGeeTheresa K. Nabors555 Thirteenth Street NWWashington DC 20004
 
     

TABLE OF CONTENTS

 

 Page

 

TABLE OF CONTENTS……………………………………………………………………………………………..2

 

TABLE OF AUTHORITIES ………………………………………………………………………………………....3

 

INTRODUCTION 5
ARGUMENT 6
I. THE DEFENDANTS IN THIS CASE HAVE NO COMMON LAW IMMUNITY 6
A. THE GOVERNMENT FAILED TO EXPLAIN WHY THE FSIA HAS NOT SUPPLANTED THE COMMON LAW IT SEEKS TO APPLY TO THIS CASE 6
B. THE GOVERNMENT FAILED TO EXPLAIN WHY THE FSIA DOES NOT GOVERN THIS CASE 9
1. The FSIA Applies to Individuals 10
2. The Chuidian Rationale Applies to All Government Officials Eligible to Claim Sovereign Immunity 11
3. Applying the FSIA Here Is Consistent with Its Legislative History 12
4. Plaintiffs’ Interpretation of the FSIA Does Not Lead to a Radical Change in the Substantive Immunity Available to Heads of State 13
C. THE GOVERNMENT’S JUSTIFICATION FOR GIVING ITSELF A COMMON LAW POWER TO DICTATE IMMUNITY IS MISPLACED 14
D. IF APPLICABLE AT ALL, THE COMMON LAW SHOULD ALSO FIND THE INDIVIDUAL DEFENDANTS NOT IMMUNE FROM THIS SUIT 17
II. THE U.N. CONVENTION DOES NOT IMMUNIZE THE DEFENDANTS 19
III. AT A MINIMUM, ZANU-PF HAS BEEN VALIDLY SERVED WITH PROCESS 24

 

TABLE OF AUTHORITIES
  Page
CASES
Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682 (1976) 11, 17
Byrd v. Corporacion Forestal y Indus. De Olancho S.A., 182 F.3d 380, 389 (5th Cir. 1999) 7
Cabiri v. Assassie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996) passim
Chuidian v. National Bank of Philippines, 912 F.2d 1095 (9th Cir. 1990) passim
Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302 (2001) 18, 20, 21
Clinton v. Jones, 520 U.S. 681 (1997) 14, 17
Dralle v. Rep. of Czechoslovakia, 17 Int.L.Rep. 155 (Sup.  Ct. of Austria 1950) 17
El-Fadl v. Central Bank of Jordon, 75 F.3d 668, 671 (D.C. Cir. 1996) 7
Ex Parte Peru, 318 U.S. 578 (1943) 3, 5, 10, 18
First American Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan, 948 F. Supp. 1107 (D.D.C. 1996) 16
First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) 17
Garcia v. United States, 469 U.S. 70, 76 (1984) 11
Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994) 4, 8
In re Doe, 860 F.2d 40 (2d Cir. 1988) 13
Jungquist v. Sheikh Sultan Bin Khalifa, 115 F.3d 1020 (D.C. Cir. 1997) 4, 7, 8, 9, 13, 17
Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995) 13, 14
Kelly v. Robinson, 479 U.S. 36, 51, n.13 (1986) 11
Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) 6, 16
Republic of Mexico v. Hoffman, U.S. 30 (1945) 5
Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1150-1 (7th Cir. 2001) 24
Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) 24
Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) 23
Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974) 5
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982) 21
The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) 4, 5, 11
United States v. Lee, 106 U.S. 196 (1882) 5
United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) 6
United States ex. rel. Casanova v. Fitzpatrick, 214 F. Supp. 425 (S.D.N.Y. 1963) 18
Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983) 4, 7, 8
Vulcan Iron Works Inc. v. Polish American Machinery Corp., 479 F. Supp. 1060 (S.D.N.Y. 1979) 7
Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) 5

 

STATUTES, TREATIES, AND CONVENTIONS
Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946 19, 20, 22, 23
Vienna Convention on the Law of Treaties, Art. (1969) 24
22 U.S.C. § 287 22

 

OTHER AUTHORITY

 

Dellepenna, Head﷓Of﷓State Immunity—Foreign Sovereign Immunities Act —Suggestion by the Department of State, 88 Am. J. Int'l L. 528 (1994) 5, 6
George, Note, Head﷓Of﷓State Immunity in the United States Courts: Still Confused After All These Years, 64 Fordham L. Rev. 1051 (1995) 5, 7

 

H.Rep. 94-1487 4
Ling, A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents, 33 WASH. & LEE L. REV. 91 (1976)  21, 22
Mallory, Resolving the Confusion over Head of State Immunity: The Defined Right of Kings, 86 Colum. L. Rev. 169 (1986) 6, 12
S. Rep. 94-1310 2, 10, 15
S. Rep. 91-17……………………………………………………………………………… 22
 
INTRODUCTION

 

 In its reply to plaintiffs’ answering brief (“Reply”), the Government does not contest that plaintiffs have suffered the worst conceivable forms of human rights abuse, nor that defendants authored those abuses in their private, rather than their sovereign capacities.  Rather, the Government asserts that it has the power to bind this Court with its Suggestion of Immunity (“the Suggestion”) without regard to the nature of the acts committed by defendants.
 Plaintiffs acknowledge the obvious importance of immunity in allowing our Government, and the United Nations, to enter into discussions with leaders from around the world.  Plaintiffs also agree the Executive Branch is responsible for the country’s foreign relations.  Nevertheless, this is not the open-and-shut case the Government describes.  Rather, plaintiffs strongly urge, the Court has a vital role here.  Indeed, a careful, logical review of the law gives this Court authority to find the defendants not immune for their concededly unofficial acts.
To be sure, the Court should not blind itself to the important policy arguments surrounding the principle of comity articulated in the Government’s brief.  To the contrary, the Court should ensure that the rule of law, and nothing else, comprehensively responds to those concerns.  First, the law serves the interest of comity by giving the Executive Branch control over a head of state’s all-important immunity from criminal prosecution.  Second, the substantive law of foreign sovereign immunity provides complete immunity to visiting heads of state and other foreign officials against all civil suits based on their sovereign conduct.  Finally, if a head of state or other official visits the United States or the United Nations on official business, it appears he may have the ability, either by prior arrangement or by limiting his visit to official business, to cloak himself with diplomatic immunity that shields him in virtually every case.
That is the law.  It protects the serious interests identified in the Government’s brief.  It also, at least to some degree, recognizes the concerns of private plaintiffs whose lives have been destroyed by terror and violence.  In this case, ZANU-PF brutally attacked and murdered three individuals for daring to believe in democracy.  The Government does not contest that these murders were committed by ZANU-PF and were not a part of any government action by the State of Zimbabwe.  The Government also does not contest that the leader of ZANU-PF, who directed the private campaign of terror that took these three lives along with more than thirty others, was served with two copies of the Summons and Complaint, both for himself personally and for ZANU-PF, as he entered a private rally here in New York designed specifically to generate support for ZANU-PF.  Under these facts, the law provides no immunity.
Apparently, the Government wants a different result.  It does not credit the law with being able to adequately address its worries and insists upon the unchecked power to dictate immunity to the courts.  Perhaps for this reason, it treats the facts in this horrific case as totally irrelevant – to the Government, it simply does not matter that Tapfuma Chiminya was burned alive on the side of a road because he decided to vote against ZANU-PF.  What matters to the Government is its claim that it, and only it, has the power to dictate immunity.  But that is not the law in this country, and while the Government tries to finesse the legal questions posed by plaintiffs’ answering brief, in reality it does nothing more than avoid them.
ARGUMENT
I. THE DEFENDANTS IN THIS CASE HAVE NO COMMON LAW IMMUNITY
 To demonstrate that a “longstanding practice” of “more than a century” gives it the power “to make conclusive determinations of head of state immunity,” the Government cites Supreme Court cases establishing the doctrine of foreign sovereign immunity. Reply at 1,2.  That is precisely the doctrine, and these are precisely the cases, which Congress replaced with the Foreign Sovereign Immunities Act (“FSIA”).  Indeed, the FSIA was enacted specifically in order to end the “longstanding practice” of deferring absolutely to the State Department.  S. REP. 94-130 at 11 (The FSIA was designed to “bring U.S. practice into conformity with that of most other nations by leaving sovereign immunity decisions exclusively to the courts, thereby discontinuing the practice of judicial deference to ‘suggestions of immunity’ from the executive branch.” (citing Ex Parte Peru, 318 U.S. 579 (1943)).  Thus, the Supreme Court cases on which the Government relies are no longer the law. 
A. THE GOVERNMENT FAILED TO EXPLAIN WHY THE FSIA HAS NOT SUPPLANTED THE COMMON LAW IT SEEKS TO APPLY TO THIS CASE
By invoking the case law from the nineteenth and early twentieth century that established the doctrine of foreign sovereign immunity and the practice of deferring to the State Department, is the Government invoking a remnant of the pre-FSIA doctrine, or is it invoking a separate doctrine of head of state immunity?  The Government does not say.
Regardless, neither argument is viable. Indeed, the Government does not argue that part of the old doctrine of foreign sovereign immunity survived the FSIA, and this Court should not adopt that argument.  The Government advanced precisely that point in Chuidian v. National Bank of Philippines, 912 F.2d 1095 (9th Cir. 1990), and the Ninth Circuit squarely rejected it.  Remarkably, given plaintiffs’ emphasis of this case, the Government refused to state whether it agreed or disagreed with Chuidian, preferring to dismiss it as “inapposite.”  With respect, there is nothing “inapposite” about the following, which forecloses the premise of the Government’s position in this case:
The government  . . . urges us to apply the pre-Act common law of immunity.  In its view, the Act replaces common law only in the context of “foreign states” as defined by section 1603(b); elsewhere – i.e., for entities covered by the common law but not the Act – common law principles remain valid. . . .  [W]e disagree with the government that the Act can reasonably be interpreted to  leave intact the pre-1976 common law with respect to foreign officials. . . .  [S]uch a rule would work to undermine the Act. 

 

Chuidian, 912 F.2d at 1101-2. 
Based on this very holding, which the Government does not contest, courts have held that, among many others, former President Marcos, Prince Sultan of Abu Dhabi and General Hector Gramajo of Guatemala were not immune from suit in our courts.   Likewise, based also on this holding, this Court held that the then-in-office Deputy National Security Advisor from Ghana was not immune from suit under the TVPA.  Cabiri v. Assassie-Gyimah, 921 F. Supp. 1189, 1198 (S.D.N.Y. 1996).  By not opposing these cases, the Government acquiesces to the fact that no part of the doctrine of foreign sovereign immunity survived passage of the FSIA.
Similarly, the Government cannot argue that, prior to 1976, an independent doctrine of “head of state immunity” existed that also provided for absolute deference to State Department suggestions.  There is no evidence such a doctrine existed independent of foreign sovereign immunity, and the Government has not pointed to a seminal case that established such a doctrine.  Rather, prior to 1976, the immunity of states, heads of states, and other non-diplomatic foreign officials was bound up in a single, indivisible doctrine of foreign sovereign immunity based on the seminal case of The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812).  This doctrine is precisely the doctrine Congress intended to supplant by enacting the FSIA.  See Chuidian, 912 F.2d at 1102 (“Congress intended the Act to be comprehensive”); H. REP. 94-1487, at 12 (describing FSIA as “setting forth comprehensive rules governing sovereign immunity”).  More importantly, it is precisely that doctrine’s peculiar practice of giving absolute deference to the State Department that the FSIA was intended to supersede, in order to “[assure] litigants that  . . . decisions are made on purely legal grounds and under procedures that insure due process.”  Verlinden v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983) (internal citations and quotations omitted).
For proof that there was only one pre-FSIA doctrine that gave the Government absolute control over immunity decisions, one need look no further than the case law on which the Government relies.  In order to demonstrate its “longstanding” power to dictate the result in this case, the Government cites to The Schooner Exchange, United States v. Lee, 106 U.S. 196 (1882), Ex Parte Peru, 318 U.S. 578 (1943), Republic of Mexico v. Hoffman, 324 U.S. 30 (1945), and Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974).  See Suggestion at 3-4; Reply at 3-4, 6.  These cases, without exception, invoke the common law doctrine of foreign sovereign immunity, and that doctrine’s practice of deferring to the State Department.  Just like the FSIA, these cases deal on their face solely with the immunity of foreign states.
Plaintiffs wish to be clear.  They agree these Supreme Court cases governed the immunity for heads of state prior to the FSIA, even though they dealt on their face only with states, because the immunity for heads of state and other officials was controlled by the doctrine of foreign sovereign immunity.  This view is widely shared.  See generally George, Note, Head﷓Of﷓State Immunity In The United States Courts: Still Confused After All These Years, 64 FORDHAM L. REV. 1051, 1055 (1995) (hereinafter “George”) (“Historically, sovereign immunity for states and heads-of-state immunity were considered one and the same”); Dellepenna, Head﷓Of﷓State Immunity—Foreign Sovereign Immunities Act – Suggestion By The Department Of State, 88 AM. J. INT'L L. 528, 529 (1994) (hereinafter “Dellepenna”) (“There was no precedent for a doctrine of substantive immunity for foreign heads of state (as distinct from the doctrine of foreign sovereign immunity generally) until after the enactment of the Foreign Sovereign Immunities Act of 1976”).
Plaintiffs are also not arguing that “head of state immunity” does not exist today.  They are simply pointing out that head of state immunity cannot be disaggregated from the original doctrine of foreign sovereign immunity, or at least not without consciously creating a new common law doctrine.  Thus, since the FSIA supplanted the common law doctrine of foreign sovereign immunity  and rescinded the practice of giving absolute deference to the State Department, the immunity of heads of state must either be controlled by the FSIA or by a new, post-FSIA common law that has not yet been formulated.  This case should decide which.  To date, the only evidence of a new, post-FSIA doctrine for heads of state is a small number of lower court decisions that invariably refer to head of state immunity as “an attribute of state sovereignty.”  See, e.g., Lafontant v. Aristide, 844 F. Supp. 128, 133 (E.D.N.Y. 1994).  These decisions have not recognized that they are creating new common law.  For that reason, they have not dispelled, and may even have caused, the considerable confusion surrounding “head of state immunity,” which has been described as “an at best amorphous legal doctrine whose very existence is not entirely settled in U.S. law and whose reach is almost entirely uncertain.”  Dellepenna, at 529 (emphasis added); see also Mallory, Resolving The Confusion Over Head Of State Immunity: The Defined Right Of Kings, 86 COLUM. L. REV. 169, 183 (1986) (hereinafter “Mallory”) (“prominent role of State Dept. has created confusion rather than clarity”); George, at 1055 (head of state immunity is “mired in confusion”).
 What is clear, however, is that the Government’s unflinching reliance upon pre-FSIA case law is simply wrong.  Those cases are not the law.  Strip the Government of these august but now obsolete authorities, and it is readily apparent that either a new common law doctrine has emerged, or, as plaintiffs have argued, the FSIA should be understood to govern immunity for heads of state under the analysis found in the Chuidian-Marcos-Cabiri line of cases. 
B. THE GOVERNMENT FAILED TO EXPLAIN WHY THE FSIA DOES NOT GOVERN THIS CASE 
Without acknowledging the large body of law holding otherwise, the Government tries to argue that the FSIA does not apply to natural persons.  Then, paradoxically, it dismisses as “inapposite” the many cases applying the FSIA to natural persons, saying that they involved natural persons other than sitting heads of state or foreign ministers.   These cases hold that the FSIA governs the immunity of individual foreign officials who could otherwise have claimed sovereign immunity before the FSIA, and that the FSIA does not immunize their unofficial conduct.  They are hardly so “inapposite” as to be unworthy of a response, and it is somewhat less than candid to dismiss them as such.
1. The FSIA Applies to Individuals
It is disingenuous for the Government to argue repeatedly that the FSIA governs only the immunity of “foreign states” and not the immunity of “natural persons,” see Reply at 8-12, all the time ignoring the overwhelming case law holding otherwise.  See, e.g., Byrd v. Corporacion Forestal y Indus. De Olancho S.A., 182 F.3d 380, 389 (5th Cir. 1999); El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996); Cabiri, 921 F. Supp. at 1197. 
While the principal focus of the FSIA may have related to commercial activities by foreign states, this and a multitude of other courts have recognized its far broader purpose.  In the words of the Supreme Court, it was enacted to end the “troublesome” practice of courts abiding by “ ‘suggestions of immunity’ from the State Department,” a practice under which, “[o]n occasion, political considerations led to suggestions of immunity in cases where immunity would not have been available under the restrictive theory.”  Verlinden, 461 U.S. at 487.  Thus, the FSIA “codifies, as a matter of federal law, the restrictive theory of sovereign immunity,” and brings an end to the era where “sovereign immunity determinations were made in two different branches, subject to a variety of factors, sometime including diplomatic considerations,” and where “the governing standards were neither clear nor uniformly applied.”  Id. at 488.
Courts throughout the country have held that this rationale would be undermined if not applied to foreign officials as well as the abstract entities of the foreign state, and have concluded that the plain text of the FSIA applies to individual officials acting in their official capacity.  See Pls. Answering Brief at 11-16 (and cases cited therein).  The Government has not asked this Court to depart from its prior holdings agreeing with this well-established interpretation of the FSIA, and there is no good reason for this Court to do so.
2. The Chuidian Rationale Applies to All Government Officials Eligible to Claim Sovereign Immunity 
 In their opening brief, plaintiffs cited to the Ninth Circuit’s decision in Chuidian as the best analysis of how the FSIA applies to individual foreign officials.  The Government dismisses Chuidian, arguing that it should not be applied to cases involving more senior foreign officials (never specifying which officials fall into this specially-protected class).  Reply at 17. 
 The government fails to acknowledge that the Chuidian analysis has been applied to resolve the immunity claims of both a foreign prince and a foreign head of state sued for conduct committed while he was a head of state.  Jungquist, 115 F.3d at 1127; Marcos, 25 F.3d at 1472.  Thus, no court has ever suggested that, as the Government seems to argue, the Chuidian interpretation of the FSIA applies only to “lower-ranking foreign officials.”  Reply at 19. 
In addition, the Government’s argument that the rationale behind Chuidian does not apply to cases involving more senior officials is incorrect.  The Government’s own account of that rationale includes the following justification for applying the FSIA to individual officials: “the perceived negative effect of permitting the Executive Branch to indirectly assert its authority over all questions of foreign sovereign immunity, notwithstanding the FSIA’s shift of such authority to the courts, by issuing binding suggestions of immunity as to any government official it chose.”  Reply at 17.  That “perceived negative effect” will certainly exist if the Government has its way in this case.
Finally, the Government suggests that the Chuidian-rationale indicates that the FSIA applies only to officials who have no “independent body of law” giving them immunity, and who are only immune from suit based on the principle of sovereign immunity.  The Government does not explain what the “independent body of law” is in this case, nor does it explain why it was not applied in other, similar cases. See, e.g., Jungquist, 115 F.3d at 1027; Cabiri, 921 F. Supp. at 1198.  In any event, it is entirely circular for the Government to argue that the FSIA did not supplant the common law in this case as it did in Chuidian simply because in this case an “independent body of common law” applies, whereas in Chuidian it did not.
The inescapable fact is that prior to the FSIA only one common law doctrine applied to cases like this one and Chuidian.  As Chuidian and many other cases have held, the FSIA was enacted to supersede that doctrine’s practice of giving absolute deference to the State Department in all cases where the doctrine previously did so.
3. Applying the FSIA Here Is Consistent with Its Legislative History 
The Government refers to a part of the FSIA’s legislative history clarifying that the legislation would not pertain to diplomats, and argues that it shows the FSIA was not intended to “alter” the immunity of “individual officials.”  Reply at 11-12.  The FSIA did not “alter” the immunity status of foreign officials, but simply transferred the resolution of that status from the Executive Branch to the courts.  For this reason, the FSIA’s legislative history has not been read to mean that, as the Government argues, the legislation applies only to “nonnatural” persons.
Moreover, the statement from the legislative history that the immunity of “diplomatic or consular representatives” would not be governed by the FSIA only confirms plaintiffs in their analysis.  In 1976, the law governing diplomatic immunity was well-established and set forth in statutes and treaties, and was not governed by the common law of sovereign immunity.  If the FSIA’s legislative history went out of its way simply to confirm that the separate statutes governing diplomats were unaffected, but made no mention of heads of state even though they were governed by precisely the same doctrine the FSIA was enacted to supplant, the strong implication is that Congress intended heads of state to be covered by the FSIA to the full extent they were previously covered by the doctrine of foreign sovereign immunity.
At most, the Government’s argument simply shows that Congress was not focused on heads of state.  That may be true, but that does not change the fact that Congress was undoubtedly focused on the common law doctrine of foreign sovereign immunity and intended to supplant it and to terminate the practice of courts being bound by suggestions of immunity.  S. Rep. 94-1310, at 11. (FSIA discontinues “the practice of judicial deference to ‘suggestions of immunity’” (citing Ex Parte Peru.))  Nothing in the legislative history in any way suggests that Congress had any expectation that this practice would continue, or that sovereign immunity could be claimed by anyone not covered by the FSIA.
4. Plaintiffs’ Interpretation of the FSIA Does Not Lead to a Radical Change in the Substantive Immunity Available to Heads of State
The Government’s argument that the FSIA should be read so as not to “disturb established practices concerning heads-of-state” makes no sense: there were no such “established practices.”  The only established concept – let alone practice – was that a head of state’s immunity was derived from the common law doctrine immunizing foreign states generally.  In plaintiff’s view, the FSIA ought not to be read to destroy that established concept.
Moreover, the Government seems to have misunderstood plaintiff’s reading of the FSIA, since it plainly does not lead to the havoc and disorder suggested by the Government.  Between 1952 and the enactment of the FSIA, the law in this country was that foreign sovereign immunity, which was assumed to encompass heads of state, was to be applied on a “restrictive,” not an absolute, basis.  Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 703 (1976).  Thus, on the eve of the FSIA’s enactment, and throughout its drafting, the background assumption was that “the law of the land” already dictated – at least in principle – that only sovereign acts were immune, while private acts were not.   The FSIA was not changing this principle, but was simply ensuring that it would be implemented as a matter of law.
Also, there was insufficient precedent for suits being brought against foreign officials and heads of state for Congress to recognize the issue as one that needed to be addressed explicitly.  Instead, Congress would have assumed that to the extent any of these officials were covered by foreign sovereign immunity prior to the FSIA, they would thereafter be covered by the FSIA, subject to its exceptions.  It is therefore unsurprising that Congress did not provide specifics on the immunity of foreign officials or heads of state, and simply defined states in the broadest possible language.
Finally, while the Government hints that interpreting the FSIA to apply to heads of state would be contrary to customary international law, it cannot seriously make this argument.  First, the principle of restrictive immunity has been applied to heads of state and other officials in other countries, and the Government does not refute this.   Second, the trend in international law is plainly towards greater accountability and more restrictive immunity.  No better example of this trend can be found than Article 27 of the Rome Statute of the International Criminal Court, as signed by both Zimbabwe and the United States.  The Government dismisses this convention and the United States’ effort to have President Milosevic prosecuted while he was a sitting head of state because these initiatives related to criminal prosecution by governments, not to civil cases brought by victims.  This distinction, like the others drawn by the Government, only shows why Article 27 does not control the outcome of this case.  Plaintiffs never said it did.  But Article 27 does show why applying the FSIA to the defendants in this case would accord with, and certainly would not offend, customary international law.
C. THE GOVERNMENT’S JUSTIFICATION FOR GIVING ITSELF A COMMON LAW POWER TO DICTATE IMMUNITY IS MISPLACED 
 In its effort to show that this case is governed not by the FSIA but by a (necessarily new) common law doctrine giving the State Department the power to bind this Court, the Government states that there are “unique foreign policy and institutional competence concerns” raised in cases dealing with heads of state and foreign ministers which are not raised in cases against other foreign officials.  Reply at 17.  The Government does not elaborate, but does confirm elsewhere in their brief that the policy concerns underlying head of state immunity are identical to those underlying foreign sovereign immunity: “the need for mutual respect and comity among foreign states.”  Reply at 3 (quoting In re Doe, 860 F.2d 40, 45 (2d Cir. 1988)).
If the Government is arguing that United States courts should not sit in judgment over the sovereign acts of a foreign state, plaintiffs quite agree.  The FSIA provides full immunity for heads of state being sued for all conduct that can fairly be characterized as official, or sovereign, in nature.  See generally Jungquist, 115 F.3d at 1027.  It appears the Government is arguing for more than this, however, and is asserting that all lawsuits against a head of state or foreign minister are, as a per se matter, equivalent to a lawsuit against a foreign state for its sovereign acts, and therefore run afoul of the principle of comity, unless the State Department says otherwise.
There are several problems with this position.  First and foremost, it arrogates to the State Department an absolute power over the potential comity concerns raised by private lawsuits, thereby contradicting the FSIA, which had supposedly transferred that power to the courts.  This power will obviously lead to grossly unfair results for litigants, whose ability to vindicate their established rights will depend solely on diplomatic and political maneuvering at the State Department and not on law.  Compare Government’s Statement of Interest, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)  with Reply Brief Submitted June 2, 2001, Chiminya v. Mugabe, Case No. 00-6666 (S.D.N.Y.).  That result is inconsistent with the FSIA and is an affront to human rights victims, to the rule of law more generally, and to the inherent power of this Court.
Second, the argument that suits against a head of state are per se equivalent to suits against a sovereign for sovereign acts is contrary to history and common sense.  Indeed, the Government’s position seeks to freeze into our system Louis XIV’s infamous eighteenth century quip, “L’etat, c’est moi.”  There is no authority for the continued viability of that principle in our legal system.  There is, however, authority for the inverse proposition that “No man is above the law.”  See generally Clinton v. Jones, 520 U.S. 681 (1997).
Moreover, the Government’s argument would lead to untenable results.  Are we to believe that a head of state could enter into a business transaction with a United States citizen on United States soil, could deliberately breach that transaction for purely private gain, and could nevertheless frequent the United States in the future to enter into similar transactions without facing the slightest threat of a lawsuit?  True, the State Department could refuse to suggest immunity, but if it will not do so here where defendants have committed torture and murder, it presumably will be even less likely to do so where defendants have merely breached contracts.  Indeed, the Government does not acknowledge any possibility that it would ever refuse to suggest immunity for a recognized head of state, and the tenor of its brief suggests it never would.  Thus, if a head of state who was wanted for war crimes  visited the United States on a purely private matter and, while here, abducted and murdered American citizens who had exposed his record, the relatives of those citizens would have no ability to sue him even if he stayed here to raise money and was served with process while walking into a fundraising event – so long as the State Department continued to recognize him as a head of state.
Sadly, that hypothetical is not farfetched.  There may be very good reasons why our government would not want to rescind diplomatic relations and withdraw recognition from a foreign government with an abysmal record on human rights, and, absent a withdrawal of recognition, it appears the Government would never refuse to suggest immunity.  Similarly, there may be very sound geopolitical reasons why the Executive Branch would not consent to allowing any criminal prosecution to be brought against an important head of state, no matter what crimes he may have committed, against American citizens or others.  Plaintiffs understand and accept those hard facts of geopolitical life.  But even accepting those facts and the Executive Branch’s unilateral, constitutionally-recognized right to make those judgments, they do not explain why the right of a private American citizen  to seek a civil judgment against the murderer of his family should be dependent upon State Department approval.  The FSIA surely did not contemplate immunity from civil jurisdiction for an individual’s “private acts” of murder.  S. Rep. 94-1310, at 9 (FSIA codifies restrictive immunity under which only public acts are immune).
Finally, the Government does not explain why foreign ministers and other, unspecified ministers must also be absolutely immune at the behest of the State Department, nor why the rationale that seeks to protect a foreign head of state from being sued must also protect him from even being served with process for a suit against a private organization with which he is affiliated. Without explanation, the Government suggests that it has the power to dictate immunity whenever it wants.  Here, it asserts that the common law requires the Court to obey the State Department’s command regarding Stan Mudenge and ZANU-PF; in the next case, perhaps it will do so with respect to officials in charge of a state trading agency, or senior military officials who hold high-ranking positions in a military dictatorship.  There is no way of knowing the extent of the power the Government assigns to itself, because the Government does not articulate a rule of law that designates certain decisions to the State Department and certain decisions to the courts.  It simply asserts the power and leaves it at that.
This Court exists to articulate rules of law, not to bow down to assertions of power.  It should not accept the Government’s invitation to adopt a completely formless doctrine that assigns absolute power to the State Department.
D. IF APPLICABLE AT ALL, THE COMMON LAW SHOULD ALSO FIND THE INDIVIDUAL DEFENDANTS NOT IMMUNE FROM THIS SUIT
 If this Court decides to accept the Government’s policy arguments regarding the “unique considerations” that apply to suits against certain unspecified government officials, and also agrees with the Government that the FSIA does not apply to these “foreign leaders,” then this Court should explicitly recognize that it would be creating a new common law doctrine that is independent from the supplanted doctrine of foreign sovereign immunity.  The district courts that have followed the Government’s command in similar cases decided after the FSIA have not recognized this,  and in that way have contributed to the widely-recognized confusion in this area.
 First and foremost, this Court should recognize that over the past half -century nations throughout the world have abandoned the notion of absolute immunity for foreign sovereigns and have adopted instead a theory of restrictive immunity, under which immunity applies solely to public acts and not to private acts.  See, e.g., Dunhill, 425 U.S. at 703 (1976) (“It is fair to say that the ‘restrictive theory’ of sovereign immunity appears to be generally accepted as the prevailing law in this country.”); Dralle v. Rep. of Czechoslovakia, 17 Int.L.Rep. 155 (Sup.  Ct. of Austria 1950) (“Growing concern for individual rights and public morality, coupled with the increasing entry of governments into what had previously been regarded as private pursuits, has led a substantial number of nations to abandon the absolute theory of sovereign immunity in favor of a restrictive theory.”) (emphasis added).  The Government does not contest that the acts at issue in this case were private acts, which are not protected by restrictive immunity.
The Government also does not contest the following propositions which lead inexorably to the conclusion that if a new doctrine of head of state immunity is to be adopted, it must honor the principle of restrictive immunity as a matter of law, to be adjudicated by courts: (1) the courts of this country have held that foreign officials, including a foreign prince, a former head of state and other prominent dignitaries, are not immune from suits based on their unofficial conduct, without any stated regard for whether they are still in office nor what rank they hold;  (2) the unanimous Supreme Court has held that neither sovereign immunity nor any other immunity prohibits a suit against our head of state if that suit is based on his unofficial conduct;  (3) the Supreme Court has also held that the State Department does not have the power to dictate when comity concerns trump a federal court’s jurisdiction over a case;  (4) the FSIA has transferred to courts the responsibility of resolving foreign sovereign immunity decisions, including those involving “natural” persons; and (5) the community of nations, including Zimbabwe and the United States, have announced earnest support for the proposition that no official, including no head of state, should benefit from immunity if he has committed crimes against humanity, such as the crimes of extra-judicial killing and torture alleged in this case.
The Government tried to show that these propositions are not necessarily dispositive in this case,  but that misses the point.  The law – and the world – has changed a lot since the Supreme Court decided Ex Parte Peru in 1943.  If this Court concludes that a new common law doctrine of head of state immunity has sprung to life after the FSIA, it should define that common law in light of these changes.  In particular, the doctrine must reflect restrictive immunity as a matter of law.  If it does, then the individual defendants in this case are not immune.
II. THE U.N. CONVENTION DOES NOT IMMUNIZE THE DEFENDANTS
 Arguing that the individual defendants have full diplomatic immunity, the Government excerpts provisions of the United Nations Charter.  But the Government fails to note that those very provisions enunciate precisely the theory of functional or restrictive immunity plaintiffs advocate here – representatives of members shall enjoy immunities “as are necessary for the independent exercise of their functions in connection with the Organization.” U.N. Charter, Art. 105 (emphasis added).  The Government also fails to state that this Court has already concluded that this language confers only functional immunity, not full diplomatic immunity.  See U.S. ex rel. Casanova v. Fitzpatrick, 214 F. Supp. 425, 428-431 (S.D.N.Y. 1963) (“Article 105 of the Charter does not purport to nor does it confer diplomatic immunity. . . .  [B]y its very language the immunity is confined to acts necessary for the independent exercise of functions in connection with the United Nations.”) (emphasis added).
 Next, the Government states that section 11 of the Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1419, 59 Stat. 1031 (“U.N. Convention”), was adopted “to give effect” to Article 105, which it undoubtedly was.  Reply at 29.  But the Government then foists upon the Court an interpretation of section 11 that is wholly at odds both with the recognized meaning of Article 105 and, more importantly, with the plain text of section 11 itself. 
In accordance with Article 105’s endorsement of functional immunity, section 11(a) clearly and succinctly states that temporary representatives of members shall receive immunity from legal process only for “words spoken or written and all acts done by them in their capacity as representatives.”  In its effort to convince the Court that section 11 provides absolute immunity, the Government ignores this language, and describes subsection 11(a) as granting “one relatively narrow species of immunity.”  Reply at 29.   The Government then urges the Court to read subsection 11(a) out of the treaty altogether by arguing that subsection 11(g) renders it utterly superfluous.  Id.
Subsection 11(g) is a generic provision applying general diplomatic privileges and immunities that are not “inconsistent” with the specific immunities enumerated in the prior six subsections of section 11.  The Government argues that, in addition to the other miscellaneous privileges and immunities conferred by section 11(g), it also provides absolute immunity from legal process in all circumstances, rendering subsection (a) completely redundant.  This reading is plainly wrong as a matter of the black-letter law of statutory construction.  See generally Circuit City, 121 S. Ct. at 1308 (“Our cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment”) (internal quotations and citations omitted).  Indeed, the Government’s reading of subsection (g) is also “inconsistent” with subsection (a) and therefore contradicts the plain text of subsection (g) itself, which provides that it applies only where not inconsistent with the rest of section 11.
The opening paragraph to section 11 further confirms that this provision confers only functional immunity, and not the absolute immunity sought by the Government.  This sentence, qualifying all seven of its subsections, provides that representatives of members shall enjoy the enumerated privileges and immunities listed in subsections (a) through (g) only “while exercising their functions and during their journey to and from the place of meeting.”  U.N. Convention, § 11.  Thus, incredibly, the Government asks this Court to make both the plain text in section 11’s first sentence and the plain text in subsection (a) utterly superfluous. 
This is not the correct way to read a statute.  Moreover, the Government’s reading does violence to more than just the plain text of section 11.  Other provisions show that when the drafters of the U.N. Convention wished to confer full diplomatic immunity, they did so unambiguously.  Thus, section 19 reads in full:
In addition to the immunities and privileges specified in Section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

 

U.N. Convention, § 19.
That language clearly confers “full diplomatic immunity” on the individuals to whom it applies.  Section 11 could hardly be more different -- it limits everything it confers to that period when representatives are “exercising their functions and during their journey to and from the place of meeting;” it confers immunity from legal process only “in respect of words spoken or written and all acts done by them in their capacity as representatives;” and it lists six very specific types of privileges and immunities, plus a generic catch-all that does not apply if it is “inconsistent with the forgoing.”  It simply is not plausible that section 11 can be read to mean precisely the same thing as section 19 despite the fact that its actual text is so vastly different.
Thus, a contemporary commentator concluded that the individuals covered by section 11 “remain subject to jurisdiction of the host state for their private acts,” and that because they “enjoy immunity only for words spoken or written and acts done by them in their official capacity, there is apparently no immunity from civil jurisdiction for nonofficial acts.”  Ling, A Comparative Study Of The Privileges And Immunities Of United Nations Member Representatives And Officials With The Traditional Privileges And Immunities Of Diplomatic Agents, 33 WASH. & LEE L. REV. 91, 108, 110 (1976) (hereinafter “Ling”).
Where, like here, the plain text of a statute is crystal clear, that should be the end of the story.  See, e.g., Circuit City, 121 S. Ct. at 1311 (2001) (“We do not resort to legislative history to cloud a statutory text that is clear.”).  However, since the plain text of the U.N. Convention does not say what the Government wants it to say, the Government resorts to certain reports and testimonials given at the time of Senate ratification of the Convention.   In particular, the Government excerpts statements from hearings and reports to the effect that the convention would give temporary representatives “full diplomatic immunities.”  Reply at 30-31.
These statements cannot trump the plain meaning of section 11.  First, the passages excerpted by the Government do not explain what is meant by the phrase “full diplomatic immunities.”  Generally, immunity from criminal prosecution is considered “[t]he most important consequence of the personal inviolability of diplomatic agents,” and section 11(a) does appear to provide immunity from arrest or detention without much limitation.  Ling, at 108.  Second, even these reports appear to reflect the reality that section 11 did not confer the same level of complete diplomatic immunity provided by section 19, as discussed above.  In the testimony of Ambassador Yost cited by the Government, he writes that those covered by section 11 would be afforded privileges and immunities “substantially equivalent to those accorded diplomats in Washington and New York,” while in the very next paragraph he writes that those covered by section 19 “would be accorded the same privileges and immunities accorded diplomats in Washington.”  S. REP. 91-17 at 8 (emphasis added).  This difference in language may be marginal, but it highlights the more obvious difference in the plain text of the convention.
 Moreover, a prior ratification demonstrates that the Senate was well aware of how to unambiguously confer full diplomatic immunity on U.N. representatives, and it did not do so here.  In 1947, one year after the U.N. Convention was adopted by the U.N. General Assembly, Congress explicitly conferred full diplomatic immunity on permanent representatives to the U.N.  See 22 U.S.C. § 287, Agreement Between The United Nations And The United States Of America Regarding The Headquarters Of The United Nations, Art. V (Section 15) (“Headquarters Agreement”).   Since the Headquarters Agreement was entered into with the clear expectation that the U.N. Convention would be “acceded to by the United States,”  and since the resident representatives to whom the Headquarters Agreement applied were also covered by section 11 of the U.N. Convention, the felt need to confer full immunity on these individuals further proves no one understood section 11 to confer “full diplomatic immunity.”
 Conceivably, section 11’s plain text could be strained to mean that the typical temporary representative receives effectively the same protection afforded a diplomat.  Ordinarily, a temporary representative of the type Ambassador Yost would have had in mind does nothing other than arrive in the host country, attend the U.N.-sponsored function, and then leave.  This representative would be absolutely immune from criminal jurisdiction, and therefore would have “full diplomatic immunity” in the way that term is colloquially understood.  Moreover, for the typical temporary representative, who did nothing other than travel to and from a U.N. meeting and participate in that meeting, the attempt to exert legal process in a civil case might usually be seen as relating to “words spoken or written and all acts done by [him] in [his] capacity as [a] representative[].”  Even under this reading, however, the individual defendants are not immune here.  They were served with Complaints alleging complicity and direct involvement in widescale human rights abuses, and therefore neither one was served “in respect of words spoken or written [or any] acts committed by them in their capacity as representatives.”
Finally, the Government insists that this Court is required to defer to the Government’s “interpretation,” but a pure litigation position articulated in this case is not entitled to such deference.  See, e.g., Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 741 (1996).  Likewise, the Government suggests that other countries also have abandoned section 11’s plain text in the way the Government advocates here, but it cites to no precedent to support this point.
In any event, international custom should only cement this Court’s denial of immunity in this case.  This case involves the extrajudicial murder and torture of innocent individuals, based on their political beliefs.  The Government is therefore asking the Court to adopt an interpretation of the U.N. Convention that undermines the highest norms of international law that prohibit this conduct.  Since 1969, international law has recognized that these and a very small number of other norms are so universally accepted and obligatory that they should be characterized as jus cogens -- meaning specifically that no treaty will be respected as valid under international law if it contravenes them.  Vienna Convention on the Law of Treaties, Art. 53 (1969) (“Vienna Convention”).  Accordingly, this Court should not agree to strain the plain text of section 11 beyond all recognition solely in order to accomplish a result that may well be invalid under the Vienna Convention, and that at a minimum erodes the universal commitment to prohibiting the abuses at issue here.  
III. AT A MINIMUM, ZANU-PF HAS BEEN VALIDLY SERVED WITH PROCESS
 Echoing defendant Mugabe’s press office, which called the service of process in this case a “non-event,”  the Government asks this Court to declare the service of the Complaint in this case “a nullity.”  Reply at 3, 34.  It argues that the individual defendants were “inviolable” as a result of the two different immunities the Government asserts on their behalf.  Reply at 32-34. 
 As shown above, these immunities do not apply.  But even if they do, the Government has not cited to a single authority demonstrating that these very uncertain substantive immunities necessarily entail the additional, procedural immunity from even being served with process in a suit against a private organization.  The Government relies on the word “inviolability,” but never explains what it really means.  Its principal meaning would seem to be that the individual’s physical person must be free from arrest or detention, a fact plaintiffs do no dispute.  See Ling, at 108.  In any event, the Government refrains from expressly arguing that ZANU-PF was not served.  Law and justice cry out to this Court to recognize that service as a fact, not a “nullity.”
Dated: New York, New York
 July 2, 2001