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TACHIONA v. MUGABE

February 14, 2002

ADELLA CHIMINYA TACHIONA, ON HER OWN BEHALF ON BEHALF OF HER LATE HUSBAND TAPFUMA CHIMINYA TACHIONA, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, EFRIDAH PFEBVE, ON HER OWN BEHALF AND ON BEHALF OF HER LATE BROTHER METTHEW PFEBVE, ELLIOT PFEBVE, ON HIS OWN BEHALF AND ON BEHALF OF HIS BROTHER METTHEW PFEBVE, EVELYN MASAITI, ON HER OWN BEHALF, MARIA DEL CARMEN STEVENS, ON HER OWN BEHALF, ON BEHALF OF HER LATE HUSBAND DAVID YENDALL STEVENS, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
V.
ROBERT GABRIEL MUGABE, IN HIS INDIVIDUAL AND PERSONAL CAPACITY, ZIMBABWE AFRICAN NATIONAL UNION-PATRIOTIC FRONT, STAN MUDENGE, JONATHAN MOYO, AND CERTAIN OTHER UNKNOWN NAMED SENIOR OFFICERS OF ZANU-PF, DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

In a Decision and Order dated October 30, 2001 (hereinafter the "Decision")*fn1, this Court honored a "Suggestion of Immunity" filed by the United States on behalf of defendants Robert Gabriel Mugabe ("Mugabe") and Stan Mudenge ("Mudenge"), respectively President and Foreign Minister of Zimbabwe. On this basis, the Court dismissed claims against Mugabe and Mudenge set forth in Plaintiffs' class action describing a campaign of torture, terrorism, summary executions and related violations of international law allegedly committed by these officials and other defendants.

The Court ruled, however, that Plaintiffs' claims against defendant Zimbabwe African National Union-Patriotic Front ("ZANU-PF"), of which Mugabe and Mudenge were senior officers and whose activities in this country they were promoting at the time they were served, could proceed to adjudication in this Court. In so deciding, the Court rejected the Government's contention that the action against ZANU-PF should be dismissed because the organization was not properly served with process. Such process had been effectuated through personal service on Mugabe and Mudenge. The Government argued that these officials enjoyed personal inviolability under the provisions of an applicable international treaty and, therefore, that any service of process on them should be quashed. Now before the Court is a motion by the United States requesting reconsideration of this aspect of the Decision.

In addition, the Government, not a party to the action, moves to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure for the limited purpose of preserving a right to appeal the Court's Decision.

I. MOTION FOR RECONSIDERATION

The standard of review applicable to motions for reconsideration in this District is set forth in Local Civil Rule 6.3. The Rule requires parties seeking reconsideration of a court's ruling to set forth concisely by motion "the matters or controlling decisions which counsel believes the court has overlooked." Local Civil Rule 6.3.*fn2 The only ground properly supporting the granting of a motion for reconsideration is that the Court overlooked matters or controlling decisions which, "`had they been considered, might reasonably have altered the result reached by the court.'" Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990) (quoting Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988)). Moreover, the Rule does not grant license for a party to "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel, Inc. v. Fidelity & Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N Y 1991) (citations omitted).

The Government argues that the interpretation given by the State Department to the provisions of treaties to which the United States is a party is entitled to an extremely high degree of judicial deference, and that in this case the Court's Decision overlooked and is contrary to "clear and binding authority requiring courts to give `great weight' to the Executive Branch's reading of treaty terms" — here the concept of "inviolability" as defined in the Vienna Convention on Diplomatic Relations (the "Vienna Convention").*fn3 The Government faults the Court's Decision on the ground that it "neither cites this authority nor exhibits any deference whatsoever to the Executive Branch's construction of the relevant provision."*fn4 (Government Memorandum, at 5.) The Court disagrees.

The Decision sets forth at length the respective views of Plaintiffs and the Government regarding the applicability of the principle of personal inviolability to the circumstances before the Court as they pertained to the service of process upon Mugabe and Mudenge related to Plaintiffs' claims against ZANU-PF. See Tachiona, 169 F. Supp. 2d at 302-03. Specifically, the Court noted that

[t]he Government further maintains that the service of process is an assertion of jurisdiction and is thus precluded as to persons who enjoy immunity from the Court's jurisdiction because if personal jurisdiction is lacking, then service of process is void. Moreover, the Government asserts that "the State Department considers that personal inviolability under Article 29 of the Vienna Convention precludes the service of compulsory legal process on diplomatic agents."

Id. (citations omitted)

After examining the Government's contention, the historical roots of the principle of inviolability and the limited case law addressing the scope of the doctrine, the Court found insufficient support for the position the Government articulated. On this basis point, the Court concluded that it must "part[] company with the Government's view." Id. at 304.

This discussion could not have been framed more explicitly to manifest that, rather than overlooking or failing to give the Government's construction the "great weight" it merited, the Court went to great lengths to acknowledge its recognition of the Government's position and to accord it appropriate consideration and respect. That the Court did not at that particular point in its Decision incant specific talismanic words or signal references to the cases the Government cites does not in any way diminish from the substantive grade or quality of consideration the Court actually extended to the Government's contention in this regard. Insofar as it may not be absolutely clear from the Decision that the Court took full account of the Government's argument and accorded its reading of the Vienna Convention the prescribed great weight, the Court here reaffirms that in deciding as it did it was mindful of the pertinent rule of construction, and that had it not applied the relevant standard in the Decision, upon any reconsideration it would reach the same conclusion.

In fact, in its analysis of the inviolability issue, the Court expressed full cognizance of both the proper rule of treaty interpretation and of the specific authorities the Government cites. Immediately preceding its discussion of inviolability, in the section of the Decision concerning the application of Section 11 of the Vienna Convention, the Court expressed its recognition of the relevant standard and case law and actually invoked them, assigning the Government's construction of Section 11 the "great weight" to which it was entitled. See Tachiona, 169 F. Supp. 2d at 302 n. 186 (citing Sumitomo, 457 U.S. at 184-85; Kolovrat, 36 U.S. at 194; and 767 Third Ave. Assocs., 988 F.2d at 301-02). By the same token, relying on common law doctrine and declining to exercise personal and subject matter jurisdiction over Mugabe and Mudenge, the Court similarly accorded binding recognition to the Government's reading of the concept of sovereign immunity as it applies to heads of state. Having already articulated the applicable decisional framework and case law guidance with respect to these issues, the Court did not deem it necessary to repeat them, relying instead on an extensive exposition of the Government's theory and arguments to convey the depth of consideration given to those views.

First, to the extent the Government's theory rests upon a construction and application of the Vienna Convention, its reliance is misplaced. The genesis and negotiating history of the Vienna Convention make clear that the purpose the treaty intended to address was the codification of rules governing diplomatic relations between sovereign states and the organization and functioning of permanent diplomatic missions in states with established relations. See Report of the International Law Commission: Diplomatic Intercourse and Immunities, U.N.G.A. 12th Sess., Supp. 9, U.N. Doc. A/3623 (1957), reprinted in II Y.B. Int'l L. Comm'n 131, 133, U.N. Doc. A/CN.41 Ser. A/1957/Add. 1 (hereinafter "1957 Int'l L. Comm'n Report"). Furthermore, the legislative history of the Diplomatic Relations Act, 22 U.S.C. § 254a-254e, which was enacted as a "necessary complement"*fn5 to the Vienna Convention, and the views of leading commentators affirm the Court's view that, while the Vienna Convention rendered the contours of diplomatic privileges and immunities more precise, it did not explicitly make those same inroads with respect to head-of-state immunity.

By its express terms, the Vienna Convention, whose text derives from the 1957 Int'l L. Comm'n Report as subsequently refined, deals with the definition of the personal privileges and immunities conferred on accredited diplomats in order to ensure the efficient performance of the functions of diplomatic missions as representing states." Vienna Convention, Preamble. Specifically, the treaty applies to diplomatic agents defined as "the head of the mission or a member of the diplomatic staff of the mission." Vienna Convention, Art. 1; see also Diplomatic Relations Act, 22 U.S.C. § 254a(1). While the Vienna Convention goes into precise detail as to the categories of diplomatic personnel eligible to receive varying degrees of immunity, nowhere in the text is there any mention of heads of state or foreign ministers, nor of the scope of privileges and immunities or defenses from territorial jurisdiction applicable to them. See Vienna Convention, Art. 37; Lord Gore-Booth, Satow's Guide to Diplomatic Practice 9 (Lord Gore-Booth ed., 5th ed. 1975) (hereinafter "Satow's Guide"). As to subjects not addressed, the treaty reaffirms that "the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention." Vienna Convention, Preamble.

The legislative history of the Diplomatic Relations Act similarly provides little support for the State Department's position that its interpretation of the Vienna Convention controls the scope of immunity conferred upon heads of state and foreign ministers. While the voluminous reports, hearings and floor debates evince a rigid preoccupation with the problem of parking tickets and traffic accidents involving the foreign diplomatic corps stationed in the United States, the legislative history reveals no discussion of immunity with respect to heads of state or foreign ministers. See. e.g., Diplomatic Immunity: Hearing on S. 476, S. 477, S. 478, S. 1256. S. 1257. and H.R. 7819 Before Sen. Comm. on the Judiciary, 95th Cong. 26-27 (1978) (statement of Rep. Joseph L. Fisher) ("My interest in diplomatic immunity was aroused by a tragic incident. . ...


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