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CHIMINYA TACHIONA v. MUGABE

August 7, 2002

ADELLA CHIMINYA TACHIONA, ON HER OWN BEHALF AND 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, AND MARIA DEL CARMEN STEVENS, ON HER OWN BEHALF AND 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: Marrero, District Judge.

  DECISION AND ORDER

Plaintiffs Adella Chiminya Tachiona, Tapfuma Chiminya Tachiona, Efridah Pfebve, Elliot Pfebve, Evelyn Masaiti and Maria Del Carmen Stevens (collectively, the "Plaintiffs") commenced the present action against President Robert Mugabe ("Mugabe") and several other high-ranking government officials of Zimbabwe, as well as against the Zimbabwe National Union-Patriotic Front (the "ZANU-PF" or the "Defendant"), that country's ruling party. The complaint alleges that the named defendants committed torture, extra-judicial killings and other atrocities that violated Plaintiffs' fundamental rights under international human rights law.

In a Decision and Order dated October 30, 2001, this Court dismissed the claims asserted against Mugabe and the other Zimbabwe officials for lack of jurisdiction. See Tachiona v. Mugabe, 169 F. Supp.2d 259 (S.D.N.Y. 2001) ("Tachiona I"). Nevertheless, the Court found that Plaintiffs had properly effected service of process on ZANU-PF through personal service on Mugabe, who also serves as ZANU-PF's titular head. See id. at 308. Defendant failed to appear in the case and a default judgment was entered against it. See id. The United States (the "Government") then filed a motion for reconsideration (United States of America's Motion for Reconsideration, dated Nov. 16, 2001 (the "Government's Motion")), which this Court denied on February 14, 2002. Tachiona v. Mugabe, 186 F. Supp.2d 383 (S.D.N.Y. 2002) ("Tachiona II").

The Court then referred the action to Magistrate Judge James C. Francis IV for an inquest on damages for which Defendant again failed to appear. Presently before the Court is the Report and Recommendation of Magistrate Judge Francis, dated July 1, 2002 (the "Report"). Based solely on the allegations and evidence offered by Plaintiffs, the Report recommends that the Court find ZANU-PF liable for each claim and award damages accordingly. The Report is attached and incorporated hereto.

The Court has reviewed each of the issues raised in the case and the Report's analyses and conclusions with respect to each issue.*fn1 For the reasons set forth below, the Court is inclined to adopt the factual findings in the Report and the determination of liability and damages for torture and extra-judicial killing under the Torture Victim Protection Act, Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note) (the "TVPA"). However, the Court reserves decision on the Report's findings with respect to Plaintiffs' claims pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350 (the "ATCA"). Furthermore, Plaintiffs may elect one of two alternatives: (1) a finding of liability and an award of damages solely for their claims under the TVPA; or (2) the submission of supplemental briefs further substantiating the legal basis for their claims under the ATCA.

I. FACTUAL BACKGROUND

Plaintiffs alleged that ZANU-PF, in an effort to suppress political opposition, and acting in concert with Mugabe and other high-ranking Zimbabwe government officials, carried out a campaign of violence against them that included extra-judicial killing, torture, seizure of property and terrorizing. The Report reviews in great detail the facts as alleged by each of the Plaintiffs. Furthermore, on April 25, 2002, Magistrate Judge Francis held an inquest hearing during which Plaintiffs testified under oath about the underlying events giving rise to their claims. (See Report, at 3-13.) Having reviewed the record, the Court is inclined to adopt the factual findings set forth in the Report. Specifically, the Court adopts the factual findings in the Report relating to the numerous, credible accounts of violence and terror perpetrated against Plaintiffs by ZANU-PF operatives.

Plaintiffs seek compensatory and punitive damages for the following claims, which they bring under the ATCA: (1) extra-judicial killing in violation of both the TVPA and fundamental norms of international human rights law; (2) torture in violation of both the TVPA and fundamental norms of international human rights law; (3) the use of terror and violence to violate freedom of thought, freedom of political opinion and freedom to exercise political franchise in violation of fundamental norms of international human rights law; (4) the use of terror and violence to violate freedom of association in violation of fundamental norms of international human rights law; (5) cruel, inhuman and degrading treatment in violation of fundamental norms of international human rights law; (6) racial discrimination in violation of fundamental norms of international human rights law; and (7) the unlawful seizure or destruction of property in violation of fundamental norms of international human rights law and the laws of Zimbabwe.

II. DISCUSSION

A. JURISDICTION

1. Personal Jurisdiction

As established in its earlier decisions in this case, this Court has personal jurisdiction over the Defendant. Tachiona I, 169 F. Supp.2d at 309; Tachiona II, 186 F. Supp.2d at 384-93. The Court notes that the United States Attorney for the Southern District of New York has filed objections to the Report (United States of America's Objections to the Report and Recommendation on Damages, dated July 15, 2002 (the "Objections")), in which it reiterates the arguments on jurisdiction that it raised at the outset of this litigation and in its motion for reconsideration. (See id.; Government's Motion.) The Government asserts that this Court erred in holding that Plaintiffs properly served process on ZANU-PF through service of process on Mugabe and another high-ranking government official of Zimbabwe. (See Objections, at 2.) It argues that these individuals each "possessed inviolability by virtue of their head of state immunity and pursuant to applicable treaties." (Id.) The Government has again raised this issue in order to preserve it for appeal. Based on the reasoning set forth in its prior decisions, the Court finds no grounds to reconsider its ruling on personal jurisdiction and the efficacy of service of process on ZANUPF. See Tachiona I, 169 F. Supp.2d at 309; Tachiona II, 186 F. Supp.2d at 384-93.

2. Subject Matter Jurisdiction

As established in its earlier decisions in this case, the Court has subject matter jurisdiction over Plaintiffs' claims of torture and extra-judicial killing, which they bring under both the ATCA and the TVPA.*fn2 See Tachiona I, 169 F. Supp.2d at 309-16; Tachiona II, 186 F. Supp.2d 383. With the possible exception of seizure of property, the Court is inclined to find subject matter jurisdiction over each of Plaintiffs' remaining ATCA claims as well.

The ATCA provides for jurisdiction over claims (1) brought by aliens (2) alleging torts (3) committed in violation of the law of nations or a treaty of the United States.*fn3 See Kadic, 70 F.3d at 239; Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887, at *3 (S.D.N.Y. Feb. 28, 2002). Plaintiffs are all citizens of Zimbabwe and have alleged well-recognized torts. The only question remaining is whether each of these torts violates international law.

Neither party briefed the Court on the elements necessary to establish that a particular claim constitutes a violation of international law, creating jurisdiction under the ATCA. The Court, therefore, expresses its preliminary view that Plaintiffs' claims, with the exception of expropriation of property, properly allege violations of international law.

A norm of international law must be specific, universal, and obligatory. See Wiwa, 2002 WL 319887, at *5 (citing Doe v. Unocal Corp., 110 F. Supp.2d 1294, 1304 (C.D.Cal. 2000)). A norm is universal and obligatory if: "(1) no state condone[s] the act in question and there is a recognizable `universal' consensus of prohibition against it; (2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; [and] (3) the prohibition against it is non-derogable and therefore binding at all times upon all actors." Id. (citing Xuncax v. Gramajo, 886 F. Supp. 162, 184 (Mass. 1995)).

Although Plaintiffs have not comprehensively substantiated their claims as violations of international law, the Court's independent review of the legal landscape has uncovered some authority for subject matter jurisdiction over most of these claims. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 448-49 (2d Cir. 2000) (citing the Restatement (Third) of Foreign Relations Law of the United States § 702(f) and indicating that international law prohibits systematic racial discrimination committed by a state actor but does not prohibit seizure of the property of its citizens within its borders); Wiwa, 2002 WL 319887, at *12 (holding that cruel, inhuman and degrading treatment and the use of terror to prevent freedom of association violate customary international law). The Court has not, however, found compelling grounds to recognize the taking of property by a sovereign government from its citizens, as asserted here, as a violation of international law. Although there is the theoretical possibility of exercising pendent jurisdiction over this claim, the Court remains unconvinced that it should do so here.

B. LIABILITY AND DAMAGES UNDER THE TVPA

The Court is inclined to adopt the Report's finding of liability under the TVPA. (See Report, at 14-17). The TVPA provides that "an individual who, under actual or apparent authority, or color of law, of any foreign nation (1) subjects an individual to torture . . . or (2) subjects an individual to extra-judicial killing" shall be liable for damages. 28 U.S.C. § 1350 Note, at § 2(a). Because the facts as alleged establish Defendant's liability under the TVPA for both torture and extra-judicial killing, Plaintiffs' rights to damages flow from the TVPA itself. See 28 U.S.C. § 1350 Note.

While requiring a damage award for successful plaintiffs, the language of the TVPA provides no methodology for determining the amount or type of these damages. See id. The Court therefore is inclined to find that the Report appropriately relied on federal common law to do so.*fn4 (See Report, at 23-26.) As one court noted, "[b]ecause Congress in the TVPA offered no methodology as to how damages should be determined, federal courts are free to and should create federal common law to provide justice for any injury contemplated by the Alien Tort Statute and the TVPA or treaties dealing with the protection of human rights." In re Estate of Marcos, 910 F. Supp. 1460, 1469 (Haw. 1995) (citing Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) ("Some [problems] will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy."); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) ("[A]n issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law.")). As regards the TVPA, the federal common law concerning damage awards allows for both compensatory and punitive damages in the amounts requested by Plaintiffs.

Courts in this and other circuits have awarded substantial compensatory and punitive damages to plaintiffs claiming torture and extra-judicial killing under the TVPA. See Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627, 1996 WL 164496, at *3 (S.D.N.Y. Apr. 9, 1996) (awarding compensatory damages including $500,000 in pain and suffering and awarding $1,000,000 in punitive damages to each relative of a victim and $5,000,000 to each victim for torture and murder under the TVPA and ATCA); Mehinovic v. Vuckovic, 198 F. Supp.2d 1322, 1358-60 (N.D.Ga. 2002) (awarding $10,0000,000 in compensatory and $25,000,000 in punitive damages to each victim for torture, cruel and inhumane treatment, arbitrary detention, violations of the law of war and crimes against humanity under both the TVPA and ATCA; as well as assault and battery, false imprisonment, intentional infliction of emotional distress and conspiracy under Georgia law); Xuncax, 886 F. Supp. at 198-200 (awarding $3,000,000 in compensatory damages to one victim but declining to award punitive damages because the torture and murders had occurred prior to the passage of the TVPA). Therefore, the Court is inclined to adopt the Report's recommended award of $2,500,000 in compensatory and $5,000,000 in punitive damages for extra-judicial killing and $1,000,000 in compensatory and $5,000,000 in punitive damages for torture for each plaintiff.

C. LIABILITY AND DAMAGES UNDER THE ATCA

In addition to bringing claims for torture and extra-judicial killing under the TVPA, Plaintiffs also bring each of their seven claims under the ATCA.*fn5 As noted above, this statute provides jurisdiction over claims brought by aliens that allege torts in violation of international law, but it does not indicate what substantive law courts should apply in determining liability and damages. See 28 U.S.C. § 1350. The Second Circuit recently pointed out that there is significant disagreement among various circuits on this issue, noting that "the federal courts have never definitively resolved this choice-of-law question." Wiwa, 226 F.3d at 105 n. 12 (citing Xuncax, 886 F. Supp. at 180-83 (holding that international law provides the substantive law for ATCA claims); In re Estate of Ferdinand Marcos, 978 F.2d 493, 503 (9th Cir. 1992) (approving the district court's use of the tort law of the state where the underlying events occurred); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 777, 781-82 (D.C.Cir. 1984) (Edwards, J. concurring) (suggesting that tort laws of the forum state might supply the substantive law for ATCA claims); Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980) (requiring choice-of-law analysis)).

The controlling case in this Circuit is Filártiga, which requires the Court to perform a choice-of-law analysis, following the standards articulated in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), to determine the substantive law for ATCA claims.*fn6 See Filártiga, 630 F.2d at 887-89 (construing the ATCA "not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law"). Because all of the parties to the instant action are citizens of Zimbabwe and all of the events took place in Zimbabwe, the Court must first look to the laws of Zimbabwe in adjudicating Plaintiffs' ATCA claims.*fn7 See Lauritzen, 345 U.S. 571, 73 S.Ct. 921 (listing seven factors to be used in performing the choice-of-law analysis for a maritime claim: (1) place of wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured; (4) allegiance of the defendant; (5) place of contract; (6) inaccessibility of foreign forum; (7) the law of the forum); see also Filártiga, 577 F. Supp. at 864 (applying Paraguayan law to plaintiffs' ATCA claims because (1) all of the events took place in Paraguay; (2) all of the parties lived in Paraguay when the events took place; (3) the parties' relationships with each other were centered in Paraguay; and (4) Paraguayan law prohibits torture).

While this Court may hear claims arising under foreign law, see, e.g., Armstrong v. Virgin Records, Ltd., 91 F. Supp.2d 628, 637 (S.D.N.Y. 2000), the Plaintiffs have neither performed the appropriate choice-of-law analysis nor clearly substantiated their claims in connection with that analysis. Therefore, in the interest of fairness to all parties, the Court requests that they provide additional briefs analyzing the applicable law of Zimbabwe underlying the ATCA claims. In the alternative, Plaintiffs may choose to accept the award of damages for the claims under the TVPA.

III. CONCLUSION AND ORDER

Accordingly, it is hereby

ORDERED that Plaintiffs shall inform the Court by letter no later than August 21, 2002, whether they intend to submit additional briefs on the issues set forth above. If Plaintiffs elect to submit additional briefs, their letter shall also set forth a proposed briefing schedule.

If, however, Plaintiffs elect to forego additional briefing and accept the award of damages under the TVPA, the Court shall promptly enter judgment accordingly.

SO ORDERED.

REPORT AND RECOMMENDATION

The plaintiffs,*fn1 Adella Chiminya Tachiona, Tapfuma Chiminya Tachiona, Efridah Pfebve, Metthew Pfebve, Elliot Pfebve, Evelyn Masaiti, Maria Del Carmen Stevens, and David Yendall Stevens ("plaintiffs"), bring this action against the Zimbabwe African National Union Patriotic Front ("ZANU-PF"), the Zimbabwe government's ruling political party.*fn2 The plaintiffs allege that the defendant, through its officers, planned and executed a campaign of violence designed to intimidate and suppress political opposition in violation of the Alien Tort Claims Act (the "ATCA"), 28 U.S.C. § 1350, the Torture Victim Protection Act (the "TVPA"), Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note), and fundamental norms of international human rights law.*fn3 Specifically, the acts alleged by the plaintiffs include: (1) politically motivated, extrajudicial killing; (2) torture; (3) the use of terror and violence to violate freedom of thought and political opinion; (4) the use of terror and violence to interfere with freedom of association; (5) cruel, inhuman, and degrading treatment; (6) racial discrimination; and (7) the unlawful seizure or destruction of property.

The complaint was properly served on the defendant, ZANU-PF, on September 8, 2000, through personal service on Robert Mugabe, its principal officer, but the defendant has failed to appear in the case. An order of default was entered on October 30, 2001, Tachiona, 169 F. Supp.2d 259, and a motion by the United States government for reconsideration of that order was denied on February 14, 2002, Tachiona ex rel. Tachiona v. Mugabe, 186 F. Supp.2d 383 (S.D.N.Y. 2002). The action was then referred to me for a hearing on damages. Despite being notified of the inquest, the defendant failed to appear, and the following findings are therefore based exclusively on the evidence presented by the plaintiffs.

Background

The plaintiffs are all citizens of Zimbabwe. The defendant, ZANU-PF, has been Zimbabwe's ruling party since 1980 and is controlled by its First Secretary and the President of Zimbabwe, Robert Mugabe. (Compl., ¶¶ 2, 21-25, 32). In January 2000, an opposition party, called the Movement for Democratic Change (the "MDC"), was formally launched. (Compl., ¶ 38). The plaintiffs allege that in response to this new political threat, ZANU-PF, through its officers, "organize[d] targeted violence against political opponents and their families and supporters, assassinations and assassination attempts, kidnappings, tortures, rapes, beatings, mass destruction of property, and mob riots in a consistent and focused campaign of terror designed to crush political opposition to ZANU-PF." (Compl., ¶¶ 3, 41). In order to further consolidate power, President Mugabe and ZANU-PF began endorsing the illegal expropriation of farmland in Zimbabwe, the majority of which was white-owned. Consequently, many farm owners and farm workers became supporters of the MDC. (Compl., ¶¶ 39-40). The plaintiffs further allege that ZANU-PF organized and paid the Zimbabwe War Veterans' Association (the "ZWVA") to illegally ...


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