The opinion of the court was delivered by: PETER K. LEISURE
These two related actions, Doe et al. v. Karadzic, 93 Civ. 0878 (PKL) and Kadic et al. v. Karadzic, 93 Civ. 1163 (PKL), have been brought before this Court pursuant to: the Alien Tort Act, 28 U.S.C. § 1350 (1948); the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) also codified at 28 U.S.C. § 1350; federal question jurisdiction, 28 U.S.C. 1331; and the principles of supplemental jurisdiction, 28 U.S.C. § 1367.
Jane Doe I and Jane Doe II, on behalf of themselves and the members of their respective classes (collectively the "Doe Plaintiffs"), seek compensatory and punitive damages for acts of rape and other human rights violations committed by forces under the command and control of defendant Radovan Karadzic. Complaint Jane Doe I and Jane Doe II v. Radovan Karadzic, 93 Civ. 0878 (PKL), filed February 11, 1993, ("Doe Complaint") at PP 1, 6. Defendant Karadzic is the leader of the Bosnian-Serb military faction, which is fighting against the government of Bosnia-Herzegovina, id. at 6, and is also the self-proclaimed president of the unrecognized Bosnian-Serb entity. Doe Memorandum in Opposition to Defendant's Motion to Dismiss ("Doe Mem.") at 4; Doe Complaint at P 15.
Plaintiffs in the related action, Kadic et al. v. Karadzic ("Kadic Plaintiffs"), seek injunctive relief and compensatory and punitive damages for personal injuries suffered as a result of inter alia, genocidal acts, torture, extrajudicial killing, and other violations of the law of nations. Complaint S. Kadic et al. v. Radovan Karadzic, 93 Civ. 1163 (PKL), filed March 2, 1993, ("Kadic Complaint") at P 1. Doe Plaintiffs and Kadic Plaintiffs (collectively the "plaintiffs") claim that they and others similarly situated are the victims of a genocidal campaign designed, authorized and directed by Karadzic.
Defendant Karadzic now moves pursuant to Fed. R. Civ. P. 12(b)(1), (2), (4), (5), and (6), for an order dismissing plaintiffs' actions on the following grounds: lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process, and nonjusticiability. For the reasons set forth below, defendant's motion to dismiss for lack of subject matter jurisdiction is granted and the actions are hereby dismissed.
On February 29, 1992, the Croats and Muslims of Bosnia-Herzegovina declared independence from Yugoslavia by popular referendum. Serbs living within Bosnia-Herzegovina boycotted the referendum and declared their own independence from the new nation, claiming a part of its territory for their own.
This Bosnian-Serb entity has not been formally recognized internationally, nor has it been recognized by the United Nations. Doe Mem. at 4, n.3; Doe Complaint at P 15.
The conflict between the Serbs and Muslims of Bosnia-Herzegovina escalated towards a state of civil war between the several ethnic factions within Bosnia-Herzegovina. The instant related actions arise out of acts allegedly engaged in by members of the forces under the command of defendant, and conducted in furtherance of defendant's attempt to gain power and control in Bosnia-Herzegovina. Doe Mem. at 4-5; Kadic Memorandum Submitted in Opposition to Defendant's Motion ("Kadic Mem.") at 2.
On February 11, 1993, Doe Plaintiffs filed their class action complaint, seeking redress on behalf of all women and men who were victims of the following torts inflicted by Bosnian-Serb military forces under the command of defendant: genocide, war crimes,
summary execution, wrongful death, torture, cruel, inhuman or degrading treatment, assault and battery, rape and intentional infliction of emotional harm. The class includes many thousands of people who have been subject to human rights abuses. Doe Complaint at PP 10-11. Doe plaintiffs alleged that Bosnian-Serb forces have systematically employed brutal violence against Bosnian Muslims. These abuses are collectively referred to as "ethnic cleansing." Id. at P 17.
Kadic Plaintiffs also allege that defendant Karadzic designed, ordered, implemented, and directed a campaign of "ethnic cleansing." Kadic Complaint at P 14. Kadic Plaintiffs allege that this campaign included, inter alia, massacres, selective murders, pillage, forced detention, and forced evacuations. Specifically, Kadic herself alleges that she witnessed the murder of her son, the burning of her home, and that she was repeatedly raped. Kadic 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 ...