The opinion of the court was delivered by: JACK B. WEINSTEIN
Before Weinstein, Senior District Judge:
The question posed by this case is whether the recognized head of a state who has violated the civil rights of a person by having him killed can avoid civil prosecution in this country by virtue of his status. The answer is yes.
Defendant seeks dismissal as a matter of law. For purposes of this opinion only it must be assumed that plaintiffs allegations are true.
Plaintiff, a resident of Queens, New York, seeks compensation in money damages for the killing of her husband, Dr. Roger Lafontant, by Haitian soldiers acting on the specific order of the then and present President of Haiti, Jean-Bertrand Aristide. She bases jurisdiction on 28 U.S.C. §§ 1331, 1350(2)(a), 1651, 2201 and 2202 and the doctrine of pendent jurisdiction. Her cause of action is predicated on: Article 2, § 2, Clause 1 and Article 6, Clause 2 of the Constitution of the United States; 28 U.S.C. § 1350 (Alien Tort Statute); 28 U.S.C. § 1350(2)(a) (Torture Victims Protection Act); 28 U.S.C. §§ 2201 and 2202, 8 U.S.C. § 1252(c), "the wrongful death statutes"; the United Nations Charter; the Universal Declaration of the Rights and Duties of Man; and customary international law.
Defendant submitted a suggestion of immunity under 22 U.S.C. § 254(d) claiming that President Aristide is immune from suit because of his status as the head-of-state of the Republic of Haiti. He asks the court to quash service of process and dismiss the action.
The Court requested the view of the United States government. The State Department then submitted a suggestion of immunity letter, filed with the Court by the Justice Department pursuant to 28 U.S.C. § 517. Section 517 provides, in pertinent part:
any officer of the Department of Justice may be sent by the Attorney General to . . . . . any district in the United States to attend to the interests of the United States in a suit pending in a court in the United States.
A final judgment, quashing service of process on President Jean-Bertrand Aristide and dismissing the action was promptly entered. This memorandum explains why this result is required.
According to the complaint, on January 7, 1991, Dr. Roger Lafontant, along with others, attempted a coup d'etat to prevent Haitian president-elect, Jean-Bertrand Aristide, from taking office. The next day, the coup was thwarted. Lafontant had been a central figure in Haitian politics for many years; he had held the position of Secretary of the Interior, Secretary of Defense and other positions in former Haitian governments. He was arrested and jailed for his participation in the failed coup and sentenced to life imprisonment on July 29, 1991.
President Aristide then, it is alleged, instructed Captain Stagne Doura, a member of the Armed Forces of Haiti, to execute Lafontant. These orders were carried-out by Private First Class Sincere Leus who shot and killed Lafontant in a Haitian prison at midnight September 29, 1991. President Aristide's conduct, it is alleged, under color of law of the Republic of Haiti, constituted a criminal act and tort that was not officially sanctioned or in furtherance of the defendant's official function as President.
Two days after this killing, President Aristide was exiled from Haiti following a successful military coup. He has since been living in the United States.
The United States government has consistently recognized Jean-Bertrand Aristide as the current lawful head-of-state of the Republic of Haiti. When President Bush received the credentials of president Aristide's designated ambassador, Jean Casimir, he publicly stated that "the United States continues to recognize President Aristide as the duly elected President of Haiti." Statement of President Bush (Oct. 1, 1991). In a speech by Secretary of State James Baker on October 2, 1991 before the Organization of American States he declared, "we [the United States government] will not recognize this outlaw regime." Address Before Organization of American States (OAS), Washington D.C. (Oct. 2, 1991). See also, Exec. Order No. 12775, 56 Fed. Reg. 50641, § (3)(a) (Prohibiting Certain Transactions with Respect to Haiti, Oct. 4, 1991) ("The term 'de facto regime in Haiti' means those who seized power illegally from the democratically elected government of President Jean-Bertrand Aristide on September 30, 1991 . . ."); Exec. Order No. 12779, 56 Fed. Reg. 55975, § (2)(e) (ProhibitingCertain Transactions with Respect to Haiti, Oct. 28, 1991); Suspension of Politico-Military Transactions with Respect to Haiti, 56 Fed. Reg. 50968 (Department of State Notice, Oct. 3, 1991) (referring to the coup ousting "the democratically elected President, Fr. Jean-Bertrand Aristide"); Notice of September 30, 1992, 57 Fed. Reg. 45557 (Continuation of Haitian Emergency) (President Bush refers to "assault on Haiti's democracy represented by the military's forced exile of President Aristide"); Proclamation No. 6569, 58 Fed. Reg. 31897, § A (Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Formulate or Implement Policies That Are Impeding the Negotiations Seeking the Return to Constitutional Rule in Haiti, June 3, 1992) (refers to "the expulsion from Haiti of President Aristide and the constitutional government"); Notice of Sept. 30, 1993, 58 Fed. Reg. 51563 (Continuation of Haitian Emergency) (President Clinton refers to "President Aristide, the democratically elected head of the Government of Haiti"); Statement by the President, Oct. 29, 1993 ("I have called President Aristide and Prime Minister Malval today to reaffirm America's commitment to finding a negotiated solution to this crisis."). Secretary of State Warren Christopher on February 15, 1993, described the military regime in Haiti as "those who hold illegal power" and President Clinton referred on October 1, 1993, to President Aristide as "the democratically elected head of the Government of Haiti."
In reply to defendant's suggestion of immunity, plaintiff submitted what purports to be a letter signed by President Aristide on September 30, 1991, relinquishing his title as President of the Republic of Haiti. She also relies on the fact that on October 6, 1991, the parliament of Haiti applied Article 149 of the Constitution of Haiti which governs succession in the event of a presidential vacancy. On October 8, 1991 a judge of the Supreme Court of Haiti, Joseph Nerette, was sworn in as temporary President of Haiti. Mr. Nerette chose Jean Jacques Honorat as Prime Minister on October 11, 1991. On October 16 the new government was approved by the parliament. This government functioned in Haiti until June 19, 1992, when President Nerette stepped aside. An agreement was signed between the defendant and Lieutenant General Raoul Cedras allowing President Aristide to return to Haiti by October 30, 1993 (the Governor's Island Agreement). President Aristide did not return to Haiti by that date and has remained continuously outside Haiti since the coup d'etat.
Defendant questions the assertion that the agreement "permits" President Aristide to return to Haiti. He claims that the agreement provides for the nomination of a Prime Minister, commander-in-chief of the Armed Forces, and the granting of an amnesty, all to be undertaken "by the President of the Republic." It is his contention that the "President of the Republic" refers to President Aristide.
Plaintiff has also submitted a copy of an arrest warrant dated November 6, 1991, issued for President Aristide's arrest by a criminal court in Haiti. This warrant charges President Aristide with the assassination of plaintiff's husband, Dr. Lafontant.
The Justice Department submitted a suggestion of immunity letter. It states in pertinent part:
The United States has an interest and concern in this action against President Aristide insofar as the action involves the question of immunity from the Court's jurisdiction of the head-of-state of a friendly foreign state. The United States' interest arises from a determination by the Executive Branch of the Government of the United States, in the implementation of its foreign policy and in the conduct of its international relations, that permitting this action to proceed against President Aristide would be incompatible with the United States' foreign policy interests.
A. Common Law Head-of-State Immunity
A head-of-state recognized by the United States government is absolutely immune from personal jurisdiction in United States courts unless that immunity has been waived by statute or by the foreign government recognized by the United States. A visiting head-of-state is generally immune from the jurisdiction of a foreign state's courts. See, e.g., Mr. Saltany v. Reagan, 702 F. Supp. 319 (D.C.C. 1988), order aff'd in part, reversed in part (on other grounds, 886 F.2d 438 (D.C.Cir. 1989), cert. denied, 495 U.S. 932 (1990) (granting head-of-state immunity to Prime Minister of England in suit alleging violations of international law); Kilroy v. Windsor, Civ. No. C-78-291 (N.D.Ohio 1978), (Prince Charles, The Prince of Wales, granted immunity from suit alleging human rights violations in Northern Ireland), excerpted in 1978 Dig.U.S.Prac.Int'l L. 641-43; Psinakis v. Marcos, Civ. No. C-75-1725 (N.D. Cal. 1975), excerpted in 1975 Dig. U.S. Prac. Int'l L. 344-45 (immunity granted to then-President Marcos following suggestion of immunity by the Executive Branch); Kendall v. SaudiArabia 65 Adm. 885 (S.D.N.Y. 1965), reported in 1977 Dig.U.S.Prac.Int'l L. 1017, 1053-34.
Head-of-state immunity, like foreign sovereign immunity, is premised on the concept that a state and its ruler are one for purposes of immunity. As early as 1812 the Supreme Court embraced the notion, grounded in customary international law, that a head-of-state is absolutely "exempted" from the jurisdiction of the receiving state's courts. Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L. Ed. 287 (1812).
This absolute form of immunity is based on the notion that all states are equal and that no one state may exercise judicial authority over another. The foreign head-of-state, as representative of his nation, enjoys extraterritorial status when travelling abroad because he would not intend "to subject himself to a jurisdiction incompatible with his dignity, and the dignity of his nation." Id. at 137; see also L. Henkin, International Law 893 (2d Ed. 1987).
Head-of-state immunity is also supported by the doctrine of comity -- that is to say, each state protects the immunity concept so that its own head-of-state will be protected when he or she is abroad. Comity has been described as:
neither a matter of absolute obligation . . . nor of mere courtesy and good will . . . but it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
Hilton v. Guyot, 159 U.S. 113, 191, 40 L. Ed. 95, 16 S. Ct. 139 (1895). This concept of doing to others as you would have them do to you is the principal rationale for a number of important doctrines of international law. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 87 L. Ed. 2d 444, 105 S. Ct. 3346 (1985) (rationale for enforcing arbitration agreements in international contracts rests on comity); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972) (rationale for enforcing forum selection clauses in international contracts rests on comity); First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 762, 32 L. Ed. 2d 466, 92 S. Ct. 1808 (1972) (Act of State rule based on comity).
Like the related doctrine of diplomatic immunity, head-of-state immunity is required to safeguard mutual respect among nations. See, Restatement (Third) of Foreign Relations Law of the United States (1986) §§ 464, 455 (diplomatic immunity). Heads of state must be able to freely perform their duties at home and abroad without the threat of civil and criminal liability in a foreign legal system. See, Note, Resolving the Confusion Over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169 (1986).
Since determination of who qualifies as a head-of-state is made by the Executive Branch, it is not a factual issue to be determined by the courts. No judicial hearing or factual determination aside from receipt of the State Department's communication is warranted.
In United States v. Noriega, 746 F. Supp. 1506 (S.D.Fla. 1990), General Noriega, prosecuted criminally in this country, challenged jurisdiction, arguing that he was entitled to head-of-state immunity. Noriega had never been officially recognized by the United States as the head-of-state of Panama. Instead, the United States had recognized President Eric Arturo Delvalle, even though General Noriega held de facto power in Panama and was dealt with as if he were head-of-state by United States officials. General Noriega argued that because he was the de facto ruler of Panama, he was entitled to head-of-state immunity. Noriega, 746 F. Supp. at 1520. This argument was rejected because the grant of immunity is a privilege which the United States may withhold from any claimant. The fact that Noriega controlled Panama did not entitle him to head-of-state immunity absent explicit recognition from the United States. Id. at 1520. The court noted that if Noriega's argument that he was entitled to head-of-state immunity were accepted, "illegitimate dictators [would be granted] the benefit of their unscrupulous and possibly brutal seizures of power." Id. at 1521.
In Saltany v. Reagan, 702 F. Supp. 319 (D.D.C. 1988), residents of Libya brought suit against Prime Minister Margaret Thatcher of the United Kingdom, for alleged violations of international law. Pursuant to 28 U.S.C. § 517 the State Department submitted an immunity letter, suggesting that the court grant Prime Minister Thatcher immunity as the head of government of a friendly foreign state. The court accepted the State Department's suggestion as conclusive, and granted immunity. Saltany, 702 F. Supp. at 320. See also, Restatement (Second) of Foreign Relations Law of the United States (1962) § 66 (defining head-of-state as either the head-of-state or head of government, thus both Queen and Prime Minister are considered the head-of-state); Kilroy v. Windsor(Prince Charles, The Prince of Wales), Civ. No. C-78-291 (N.D.Ohio 1978), excerpted in 1978 Dig. U.S.Prac.Int'l L. 641-43, (holding Prince Charles as heir apparent to the throne is head-of-state in accordance with State Department suggestion of immunity).
The government of a foreign state which is recognized by the Executive Branch may waive its head-of-state immunity. In In re Grand Jury Proceedings, 817 F.2d 1108 (4th Cir. 1987), cert. denied, 484 U.S. 890 (1987), Ferdinand and Imelda Marcos, the former leaders of the Philippines, were found civilly liable for failing to comply with federal grand jury subpoenas. The court held that the doctrine of head-of-state immunity is not an individual right but an "attribute of state sovereignty," a privilege that can be revoked by the foreign state. Corazon Aquino was recognized by the United States as the then head-of-state of the Philippines. The Aquino government waived Mr. and Mrs. Marcos' residual head-of-state or diplomatic immunity in a note to the United States government. The court honored President Aquino's waiver, holding that application of head-of-state immunity to the Marcoses would "clearly offend the present ...