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In 2000, several Zimbabwe nationals filed a civil action in a New York federal court under the Torture Victim Protection Act seeking $68.5 million in compensatory and punitive damages against various defendants, including Zimbabwean Pres Robert Mugabe and Foreign Minister Stan Mudenge. The US government filed a "suggestion of immunity" with the district court, stating that the two officials had head-of-state immunity under customary international law, among other things.
STATE JURISDICTION AND JURISDICTIONAL IMMUNITIES
In 2000, several Zimbabwe nationals filed a civil action in a New York federal court under the Torture Victim Protection Act1 seeking $68.5 million in compensatory and punitive damages against various defendants, including Zimbabwean President Robert Mugabe and Foreign Minister Stan Mudenge. The plaintiffs alleged that they or their deceased relatives had been subject to murder, torture, or other acts of violence under orders from President Mugabe as part of a widespread campaign to intimidate his political opponents. The alleged victims are associated with a Zimbabwean opposition party known as the Movement for Democratic Change, which has sought to end the twenty-year rule of President Mugabe.2
Service of process was made on President Mugabe and Foreign Minister Mudenge in September 1999 while they were visiting the United Nations. On February 23, 2001, the U.S. government filed a "suggestion of immunity" with the district court, stating that the two Zimbabwean officials had head-of-state immunity under customary international law, had diplomatic immunity under certain agreements with the United Nations, and had "personal inviolability"-and thus could not be served in any capacity. The submission provided, in part:
3. Under customary rules of international law recognized and applied in the United States, and pursuant to this Suggestion of Immunity, President Mugabe, as the head of a foreign state, is immune from the Court's jurisdiction in this case. See, e.g., First American Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan, 948 F.Supp. 1107, 1119 (D.D.C. 1996); Alicog v. Kingdom of Saudi Arabia, 860 F.Supp. 379, 382 (S.D. Tex. 1994), affd, 79 F.3d 1145 (5th Cir. 1996); Lafontant v. Aristide, 844 F.Supp. 128, 132 (E.D.N.Y. 1994). In addition, Foreign Minister Mudenge also is immune from the Court's jurisdiction in this case. See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 138 (1812) (Marshall, CJ.) (recognizing that, under customary international law, "the immunity which all civilized nations allow to foreign ministers" is coextensive with the immunity of the sovereign); Kim v. Kim Yong Shik, Civ. No. 12565 (Cir. Ct., 1st Cir., Hawaii 1963), cited at 58 Am. J. Int'l L. 186 (1964) (recognizing immunity of foreign minister) ....
4. The Supreme Court has mandated that the courts of the United States are bound by suggestions of immunity, such as this one, submitted by the Executive Branch. See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35-36 (1945); Ex Parte Peru, 318 U.S. 578, 588-89 (1943). In Ex Parte Peru, the Supreme Court, without further review of the Executive Branch's determination of immunity, declared that the Executive Branch's suggestion of immunity "must be accepted by the courts as a conclusive determination by the political arm of the Government" that the court's retention of jurisdiction would jeopardize the conduct of foreign relations. Ex Parte Peru, 318 U.S. at 589. See also Spacil V. Crowe, 489 F.2d 614, 617 (5th Cir. 1974). Accordingly, where, as here, immunity has been recognized by the Executive Branch and a suggestion of immunity is filed, it is the "court's duty" to surrender jurisdiction. Ex Parte Peru, 318 U.S. at 588. See also Hoffman, 324 U.S. at 35.
5. The courts of the United States have heeded the Supreme Court's direction regarding the binding nature of suggestions of immunity submitted by the Executive Branch. See, eg., First American Corp., 948 F.Supp. at 1119 (suggestion by Executive Branch of the United Arab Emirates' Sheikh Zayed's immunity determined conclusive and required dismissal of claims alleging fraud, conspiracy, and breach of fiduciary duty); Alicog, 860 F.Supp. at 382 (suggestion by Executive Branch of King Fahd's immunity as head of state of Saudi Arabia held to require dismissal of complaint against King Fahd for false imprisonment and abuse); Lafontant, 844 F.Supp. at 132-33 (suggestion by Executive Branch of Haitian President Aristide's immunity held binding on court and required dismissal of case alleging President Aristide ordered murder of plaintiff's husband); Saltany v. Reagan, 702 F.Supp. 319, 320 (D.D.C. 1988) (suggestion by Executive Branch of Prime Minister Thatcher's immunity conclusive in dismissing suit that alleged British complicity in U.S. air strikes against Libya), affd in part and rev'd in part on other grounds, 886 F.2d 438, 441 (D.C. Cir. 1989), cent. denied, 495 U.S. 932 (1990); Gerritsen, slip op. at 7-93 (in suit against Mexican President De la Madrid and others for conspiracy to deprive plaintiff of constitutional rights, action against President De la Madrid dismissed pursuant to suggestion of immunity); Domingo, slip op. at 2-44 (action alleging political conspiracy by, among others, then President Ferdinand Marcos and then First Lady Imelda Marcos of the Republic of the Philippines dismissed against them pursuant to the suggestion of immunity); Psinakis v. Marcos, No. C-75-1725-RHS (N.D. Cal. 1975), result reported in Sovereign Immunity, 1975Digest of U.S. Practice in Int'l Law 7, at 344-45 . . . (libel action against then President Marcos dismissed pursuant to suggestion of immunity); Anonymous v. Anonymous, 581 N.Y.S.2d 776, 777 (lst Dept 1992) (divorce suit against head of state dismissed pursuant to suggestion of immunity); Guardian F. v. Archdiocese ofSan Antonio, Cause No. 93-CI 1345 (Tex. Dist. Ct. 1994) ... (suggestion of immunity required dismissal of suit against Pope John Paul II).
7. In addition to head of state immunity, in this case, as representatives of the Government of Zimbabwe to the United Nations Millennium Summit, President Mugabe and Foreign Minister Mudenge are also entitled to diplomatic immunity under the Convention on Privileges and Immunities of the United Nations, adopted Feb. 13, 1946, United States accession, April 29, 1970, 21 U.S.T. 1418 (the "UN General Convention"), and the Vienna Convention on Diplomatic Relations, done April 18, 1961, United States accession, December 13, 1972, 23 U.S.T. 3227 (the "Vienna Convention"). Article IV, Section 11, of the UN General Convention provides that representatives of Member States to United Nations conferences are entitled to the privileges and immunities enjoyed by diplomatic envoys, subject to exceptions not applicable here. Article 31 (1) of the Vienna Convention provides that diplomatic agents enjoy comprehensive immunity from civil jurisdiction, again subject to narrow exceptions not applicable here. Immunity extends to such representatives throughout the course of their U.N. visit, and would apply from the time of entry into the United States until departure or expiry of a reasonable period following conclusion of their U.N. business. See Vienna Convention, article 39(1) and (2). The Diplomatic Relations Act, 22 U.S.C. 254a, et. seq., provides that an action against an individual who is entitled to immunity shall be dismissed where immunity is established "upon motion or suggestion by or on behalf of the individual." 22 U.S.C. (sec)254d.5
The plaintiffs in the case then advanced several arguments why the court was not bound by the U.S. government's suggestion of immunity. One of those arguments was that, in passing the Foreign Sovereign Immunities Act (FSIA),6 Congress ended by statute not only the practice of judicial deference to executive branch suggestions of immunity for foreign states, but also any such practice regarding the immunity of heads of state. In a further submission to the court, the U.S. government addressed this argument.
In the FSIA, Congress "f[ound] that the determination by United States courts of claims of foreign states to immunity [from jurisdiction] would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts." 28 U.S.C. 1602 (emphasis added). The same provision further observed that" [u]nder international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned .... Claims of foreign states to immunity should henceforth be decided by courts of the United States... in conformity with the principles set forth in this chapter." Id. (emphasis added). Thus, the Congressional declaration of the FSIA's purpose indicates an intent to subject foreign states-not heads of state-to judicial weighing of such states' immunity or lack thereof, because of a particular Congressional concern with the determination of immunities as to commercial activities by foreign states ....
... On at least five such occasions, courts specifically rejected the argument advanced by Plaintiffs here-that enactment of the FSIA authorized courts to reject Executive Branch suggestions of head-of-state immunity and to permit a suit to proceed. See Aristide, 844 F.Supp. at 132-33 (Executive Branch's suggestion of immunity mandated dismissal of suit against Haitian President Aristide; enactment of FSIA did not alter controlling effect of suggestion of immunity); First American Corp., 948 F.Supp. at 1119 (dismissing action against Sheikh Zayed on strength of Executive Branch suggestion of immunity; "enactment of the FSIA was not intended to affect the power of the State Department, on behalf of the President as Chief Executive, to assert immunity for heads of state or for diplomatic and consular personnel") (citing Aristide); Kline, 141 Misc.2d at 787, 535 N.Y.S.2d at 305 (enactment of FSIA did not affect binding nature of Executive Branch suggestion of immunity of head-of-state's wife); Gerritsen, slip op. at 7-9 ... (dismissing complaint against President of Mexico on strength of Executive Branch Suggestion of Immunity; FSIA "does not refer to individual representatives of foreign governments" and "was not intended to affect the power of the State [D] epartment to assert immunity"); Estate of Domingo, slip op. at 3-4 ... (rejecting plaintiffs' "principal argument in opposition to the Suggestion of Immunity" that adoption of FSIA was intended to "eliminate the Suggestion of Immunity procedure"; in fact, no evidence of such intent [exists] in legislative history, and the FSIA merely governs immunity of states, not heads-of-state). No court has held to the contrary in a case involving a head-of-state, and the only case in which a court held it was not bound by a suggestion of immunity rejected an argument that the FSIA procedures applied to the lower-ranking government official in that case. See Marcos, 665 F.Supp. at 797.7
1 28 U.S.C. 1350 note (1994).
2 See Jillian Reilly, Let Them Pursue at Least Symbolic Justice, WASH. POST, Feb. 18, 2001, at B5.
3 [Editor's Note: Gerritsen v. de la Madrid, No. CV 85-5020-PAR (C.D. Cal. Feb. 5, 1986), rev'd as to other defendants on other grounds, 819 F.2d 1119 (9th Cir. 1987).]
4 [Editor's Note: Estate of Domingo v. Marcos, No. C82-1055V (W.D. Wash. July 14, 1983).]
5 Suggestion of Immunity Submitted by the United States of America at 3-8 (Feb. 23, 2001), Tachiona v. Mugabe, 00 Civ. 6666 (VM) (S.D.N.Y.) (footnotes omitted).
6 28 U.S.C. 1602-1611 (1994).
7 Government's Memorandum of Law in Reply to Plaintiffs' Answering Brief Concerning Defendants' Immunity at 9, 12-13 (June 1, 2001), Tachiona v. Mugabe, 00 Civ. 6666 (VM) (S.D.N.Y.).
Copyright American Society of International Law Oct 2001