Plaintiffs allege that these and other acts were conducted pursuant to the order and direction of defendant Karadzic, and that such acts continue to the present.
On February 11, 1993, the same day the Doe Complaint was filed, Jonathan Soroko ("Soroko") attempted to effect service on Karadzic in the lobby of Karadzic's hotel, the Hotel Inter-Continental, 111 East 48th Street, New York, New York. Affidavit of Jonathan Soroko, submitted in support of Doe Mem., sworn to on February 12, 1993 ("Soroko Aff."), at P 4. At the time, Karadzic was surrounded by a security detachment led by Special Agent R. A. Diebler ("Diebler"), a Special Agent of the Diplomatic Security Service of the United States Department of State. When Soroko attempted to serve Karadzic, Diebler's security team executed a procedure designed to cover and evacuate Karadzic, forming a ring around Karadzic and rushing him into the elevator. Affidavit of Agent Roy Anthony Diebler, sworn to on September 30, 1993, ("Diebler Aff.") at PP 10-12.
The record contains conflicting affidavits regarding the attempted service. Soroko contends that he was no more than two feet from defendant, Soroko Aff. at P 4, while Diebler contends that "the man [Soroko] could not have gotten any closer to Dr. Karadzic than 6-8 feet at the most." Diebler Aff. at P 13. It is not disputed, however, that during the attempted service, Soroko called out words declaring that defendant was served. Soroko Aff. at P 4; Diebler Aff. at P 12. Diebler asserts that prior to leaving the United States, Karadzic had no knowledge that Soroko was attempting to serve him with process. Diebler Aff. at 14.
On March 2, 1993, Kadic Plaintiffs filed their related complaint, alleging tortious conduct, including, inter alia, rape, forced prostitution, forced pregnancy, forced childbirth, and gender and ethnic discrimination. On March 4, 1994, after attempts by professional process servers proved unsuccessful, see Kadic Mem. at 2, see also, Deibler Aff. at P 17, the Honorable Richard Owen, United States District Judge, Southern District of New York, granted a motion for leave to effect service upon defendant by alternate means. On March 5, 1993, a copy of the summons and complaint was delivered by a United States Marshal to Special Agent Diebler, who personally delivered them that day to Karadzic. See Kadic Mem. at 2-3; Deibler Aff. at P 18. On May 10, 1993, Karadzic filed the instant motion to dismiss.
I. Karadzic's Motion to Dismiss
A. INITIAL CONSIDERATIONS
As an initial matter, this Court notes that "federal judicial power is limited to those disputes . . . which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 97, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). It is well settled that no justiciable controversy is presented when the parties seek an advisory opinion. Id. at 95. Furthermore, "a judicial declaration subject to discretionary suspension by another branch of government may easily be characterized as an advisory opinion." Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, at § 3529.1 (1984) (citations omitted).
Given that Karadzic's present lack of head-of-state immunity is conditioned upon a decision of the Executive Branch not to recognize a Bosnian-Serb nation and not to acknowledge Karadzic as an official head-of-state,
plaintiffs' claims for relief could potentially become a request for an advisory opinion if the State Department were to declare defendant a Head of State. "A head-of-state recognized by the United States government is absolutely immune from personal jurisdiction in United States courts." Lafontant v. Aristide, 844 F. Supp. 128, 131 (E.D.N.Y. 1994) (Weinstein, J.). As the Aristide court held, the "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." Lafontant v. Aristide, 844 F. Supp. at 130. In Aristide, after the State Department submitted a letter, filed with the Court by the Justice Department pursuant to 28 U.S.C. § 517, the court promptly entered a final judgment, quashing service of process on defendant and dismissing the action. Id. (collecting cases in which absolute immunity was accorded a head-of-state). See In Re Doe, 860 F.2d 40, 44-46 (2d Cir. 1988). Were the Executive Branch to declare defendant a head-of-state, this Court would be stripped of jurisdiction. See Lafontant v. Aristide, 844 F. Supp. at 130.
This consideration, while not dispositive at this point in the litigation, militates against this Court exercising jurisdiction over the instant action.
B. SUBJECT MATTER JURISDICTION
Plaintiffs bring these related actions pursuant to the Alien Tort Claim Act; the Torture Victim Protection Act ("TVPA"); federal question jurisdiction; and the principles of supplemental jurisdiction. Doe Plaintiffs suggest in their memorandum submitted in opposition, that this Court should not address the issue of subject matter jurisdiction because defendant, who moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(1), did not brief the issue. Doe Mem. at 3 n.2. Nevertheless, "it is common ground that in our federal system of limited jurisdiction any party or the Court sua sponte, at any stage in the proceedings, may raise the question of whether the court has subject matter jurisdiction." United Food & Commercial Workers Union v. Centermark Props. Meriden, 30 F.3d 298, slip op. at 5580 (2d Cir. 1994) (citation omitted). Accordingly, this Court must address the issue of subject matter jurisdiction.
1. This Court Does Not Have Jurisdiction Pursuant to the Alien Tort Claim Act
The Alien Tort Claim Act, 28 U.S.C. § 1350, grants the district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Since plaintiffs do not contend that their claim arises under a treaty of the United States, this Court, in order to determine whether it has subject matter jurisdiction pursuant to § 1350, must examine whether the actions of defendant, alleged herein, constitute an actionable violation of the law of nations under the statute.
The Second Circuit has found that only conduct which rises to the level of an "international common law tort" by violating universally accepted standards of human rights is within the law of nations, and thus within the subject matter jurisdiction of the Act. Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980). In Filartiga, the Second Circuit consulted modern sources of international law including judicial decisions and scholarly works, in order to determine what constituted the law of nations. Id. at 880-81 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)).
Historically, the "traditional view of international law [was] that it established substantive principles for determining whether one country had wronged another." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 422, 11 L. Ed. 2d 804, 84 S. Ct. 923 (1964). "Classical international law was predominantly statist. The law of nations traditionally was defined as 'the body of rules and principles of action which are binding upon civilized states in their relation to one another.'" Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 792 n.22 (D.C. Cir. 1984) (Edwards, J.) (quoting J. Brierly, The Law of Nations 287 at 1 (6th ed. 1963)) (emphasis in original). Accord Carmichael v. United Technologies Corp., 835 F.2d 109, 113 (5th Cir. 1988) ("The standards by which nations regulate their dealings with one another inter se constitute the 'law of nations.' These standards include the rules of conduct which govern the affairs of this nation, acting in its national capacity, in relationships with other nations.") (citations omitted). Over time, the view that international law applied only as between nations evolved, such that international law became applicable to nations acting against their own citizens or to a foreign government acting against an individual. See Filartiga, 630 F.2d at 884-85.
In Filartiga, the Second Circuit, held that official torture constituted an actionable claim within the subject matter jurisdiction of the court under § 1350. In reaching this conclusion the Second Circuit stated that "torture . . . is defined as any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official." Id. at 882 (citing General Assembly Resolution 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N.Doc A/1034 (1975)) (emphasis added). The Filartiga Court went on to hold that acts of official torture committed by a government either against aliens, or against nationals of the acting state, violate the law of nations. Filartiga, 630 F.2d at 884-85. The Second Circuit, in Filartiga, reached the conclusion that "official torture is now prohibited by the law of nations." Id. at 885 (emphasis added).
Since Filartiga, § 1350 has been applied by a handful of federal courts, and the decisions reviewed by this Court reinforce the conclusion that acts committed by non-state actors do not violate the law of nations. Most notable, perhaps, is the opinion by the United States Court of Appeals for the District of Columbia in Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774 (D.C. Cir. 1984). In Tel-Oren, survivors and representatives of persons murdered by the Palestine Liberation Organization ("PLO") brought suit pursuant to 28 U.S.C. §§ 1350 and 1331. The District Court dismissed the action for lack of subject matter jurisdiction. The District of Columbia Circuit panel, writing three separate concurring opinions, affirmed the district court's dismissal. In his opinion, Judge Edwards embraced the holding of Filartiga, but specifically declined to extend Filartiga or the application of § 1350 to non-state actors.
Judge Edwards stated that "the extension would require this court to venture out of the comfortable realm of established international law -- within which Filartiga firmly sat -- in which states are the actors. It would require an assessment of the extent to which international law imposes not only rights but also obligations on individuals." Tel-Oren, 726 F.2d at 792. Judge Edwards also stated that the law of nations does not impose "the same responsibility or liability on non-state actors  as it does on states and persons acting under color of state law." Id. at 776. Judge Edwards concluded that since "the PLO is not a recognized member of the community of nations" an action brought pursuant to § 1350 would not lie. Id. at 792. Accordingly, Judge Edwards "declined to read section 1350 to cover non-state actors, absent guidance from the Supreme Court on the statute's usage of the term 'law of nations.'" Id. at 795.
Since Tel-Oren, a number of Federal Courts have applied § 1350, but, in doing so, have also declined to extend it to cover the conduct of non-state actors. In Sanchez-Espinoza v. Reagan, 248 U.S. App. D.C. 146, 770 F.2d 202 (D.C. Cir. 1985), a group of Nicaraguans brought a claim pursuant to § 1350, seeking redress for tortious injuries which they and their families suffered at the hands of the Nicaraguan Contra Forces ("Contras"). Id. at 205. Plaintiffs' claims arose out of alleged attacks by the Contras on Nicaraguan civilians which resulted in, inter alia, summary execution, murder, abduction, torture, rape, and woundings. Id. In holding that plaintiffs' claims could not be remedied under the Alien Tort Statute, Judge (now Justice) Scalia stated the following:
we are aware of no treaty that purports to make the activities at issue here unlawful when conducted by private individuals. As for the law of nations--so-called 'customary international law,' arising from 'the customs and usages of civilized nations, '--we conclude that this also does not reach private, non-state conduct of this sort."