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TACHIONA v. MUGABE

December 11, 2002

ADELA CHIMINYA TACHIONA, ET AL., PLAINTIFFS,
V.
ROBERT GABRIEL MUGABE, ZIMBABWE AFRICAN NATIONAL UNION PATRIOTIC FRONT, STAN MUDENGE, ET AL. DEFENDANTS.



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

    DECISION AND ORDER

TABLE OF CONTENTS

I. BACKGROUND

II. DISCUSSION

A. LIMITATIONS OF CHOICE OF LAW

B. EMERGENCE OF FEDERAL COMMON LAW POST-FILARTIGA

C. CHOICE OF LAW ANALYSIS AND APPLICATION OF THE PERTINENT RULES OF DECISION

1. Torture and Extrajudicial Killing

a. Tapfuma Chiminya Tachiona

b. David Yendall Stevens

c. Metthew Pfebve

2. Denial of Political Rights

a. The Restatement of Foreign Relations

b. The Civil and Political Rights Covenant

c. Recognition by Court and Other Adjudicatory Bodies

d. Application to the Case At Bar . . .

e. Zimbabwe Law

3. Cruel, Inhuman or Degrading Treatment

a. International Law

b. Zimbabwe Law

4. Racial Discrimination and Unlawful Seizure of Property

a. Racial Discrimination

b. Seizure of Property

III. CONCLUSION

A. CLAIMS ONE AND TWO

1. Extrajudicial Killing

2. Torture

B. CLAIMS THREE AND FOUR

1. Loss of Enjoyment of Political Rights

2. Loss of Property

C. CLAIM FIVE

D. CLAIMS SIX AND SEVEN

1. Systematic Racial Discrimination

2. Loss Home, Destruction of Business and Seizure of Property

IV. ORDER

I. BACKGROUND

Plaintiffs in this matter, all citizens of Zimbabwe, brought suit alleging violations of the Alien Tort Claims Act (the "ATCA"),*fn1 the Torture Victim Protection Act (the "TVPA")*fn2, fundamental norms of international human rights law, and Zimbabwe law. In a Decision and Order dated October 30, 2001, the Court dismissed on jurisdictional grounds Plaintiffs' claims naming as defendants Zimbabwe President Robert Mugabe ("Mugabe") and other Zimbabwe government officials entitled to invoke sovereign or diplomatic immunity. But the Court found a sufficient basis to exercise jurisdiction over the claims asserted against the Zimbabwe African National Union-Patriotic Front "ZANU-PF," the country's ruling party, through process personally served on Mugabe, who is also ZANU-PF's titular head.*fn3

ZANU-PF failed to answer the complaint or otherwise appear in the case and a default judgment was entered against it. The Court then referred the matter to Magistrate Judge James C. Francis, IV for an inquest on damages. ZANU-PF did not appear in that proceeding as well. Consequently, the Magistrate Judge issued a Report and Recommendation on July 1, 2002 (the "Report") recommending awards of damages on Plaintiffs' claims under both the ATCA and the TVPA. The Court, in a Decision and Order dated August 7, 2002, adopted the Report's factual findings and determination of damages relating to the torture and extrajudicial killing claims under the TVPA, but reserved judgment as to the award recommended under the ATCA.*fn4

With regard to the ATCA claims, the Court determined that under its reading of applicable Second Circuit doctrine, as articulated in Filartiga v. Pena-Irala,*fn5 it was required to perform a choice of law analysis to determine the appropriate substantive law governing the adjudication of ATCA disputes alleging human rights abuses.*fn6 The Second Circuit recently reiterated this approach. In dictum in Wiwa v. Royal Dutch Petroleum Co.,*fn7 the court construed Filartiga I to hold that the ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive law in such an action.

Because the choice of law question had not been addressed in prior proceedings on this matter, the Court directed the parties to brief the issue. Plaintiffs submitted a timely response. ZANU-PF did not respond. Consequently, the Court regards Plaintiffs' factual assertions, and the materials describing the content and meaning of Zimbabwe law as it pertains to the proceeding now before the Court, as unrefuted and accords them appropriate weight.

Noting that each of the seven ATCA claims they assert describes conduct that violates substantive rights recognized by the Zimbabwe Constitution and applicable municipal laws, Plaintiffs urge the Court to approve the corresponding award of damages recommended by the Report. For the reasons described below, the Court adopts the recommendations of the Report with one modification.

II. DISCUSSION

A. LIMITATIONS OF CHOICE OF LAW

Plaintiffs contend that the Court's ATCA choice of law inquiry should focus on the existence of substantive rights violated by particular unlawful conduct and not on whether the law of the state where the alleged deprivation occurred recognizes specific causes of action defining those rights and prescribes particular remedies for their violation.

Before undertaking the choice of law analysis Filartiga I instructs, the Court is obliged, as a context for its ruling, to express some conceptual challenges and practical constraints the task inherently presents. At the outset, a central question raised by the endeavor is the purpose the choice of law findings are to serve. Does the analysis compel the application of one forum's pertinent law in its entirety? Or is it to be employed, as Plaintiffs suggest, for comparative ends, to identify various sources of relevant substantive rights and principles from which the Court may draw in fashioning the ATCA remedy most appropriate under the circumstances of the case?

Ordinarily, a choice of law assessment weighs the competing interests of the different jurisdictions that may have significant contacts and relationships with a given legal dispute and substantial stakes in the outcome. The task presupposes that in considering the various claims for application of one forum's decisional rules as opposed to another's, the substantive local law applied would be that of the jurisdiction which, in the final analysis, possesses the most significant relationships with the parties and the events and thus the most extensive interests in the outcome of the litigation.*fn8 Consequently, the governing rules the inquiry would compel would encompass the entire body of local law that normally would be brought to bear domestically to fully resolve the merits of the controversy were it litigated in that jurisdiction.*fn9

Under strict obedience to these choice of law doctrines, courts may not disregard applicable municipal law that the analysis points to as the substantive decisional rule, and instead pick and choose from among other doctrinal sources to tailor a remedy specific to the occasion. As the Supreme Court has observed: "The purpose of a conflict-of-laws doctrine is to assure that a case will be treated [in] the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum."*fn10

The adoption of these principles as the product of a choice of law evaluation of an ATCA claim poses a significant quandary. In some cases the relevant municipal law of the jurisdiction where the events occurred and where the parties reside, and thus whose application may be demanded under traditional choice of law precepts, may be inadequate or may conflict with federal principles embodied in the ATCA, or with international norms. In consequence, circumstances may arise, as in the instant case, in which rigid adherence to that local law may defeat the purposes of the ATCA.*fn11

The rub here arises because a strict reading of Filartiga I may suggest the possibility of such an outcome. In pointing to the distinction between the ATCA jurisdictional threshold, which requires consideration of international law, and the question of the substantive law to be applied to determine liability, the Second Circuit indicated that the choice of law inquiry is "a much broader one, primarily concerned with fairness."*fn12 The Circuit Court then intimated that in performing the choice of law assessment on remand, the district court could very well decide that considerations of fairness would require application of municipal law of the foreign state where the events occurred, in which event "our courts will not have occasion to consider what law would govern a suit under the [ATCA] where the challenged conduct is actionable under the law of the forum and the law of nations, but not the law of the jurisdiction in which the tort occurred."*fn13

This Court, in performing the requisite choice of law inquiry in the instant case, grappled with the meaning and implications of the Filartiga I court's mandate. Under traditional choice of law inputs relevant to the matter at hand, the United States has a significant interest in providing a forum for the adjudication of claims under the ATCA alleging certain violations of international human rights law, thereby advancing the realization of the values embodied in universally recognized norms.*fn14 However, given the jurisdictional facts present here, Zimbabwe would have the predominant interests in the adjudication of this case pursuant to Zimbabwe law. All of the Plaintiffs are citizens of Zimbabwe. ZANU-PF is the country's ruling political party, headed by Mugabe. All of the events Plaintiffs describe as constituting the actionable conduct and corresponding injuries occurred in Zimbabwe, arising out of political conflicts and social conditions prevailing there. Thus, the pertinent relationships between this action and the parties and underlying events are predominantly connected with Zimbabwe.*fn15 Zimbabwe therefore has a strong interest in the application of its local law to the resolution of a controversy so fundamentally rooted in that country.

But what decisional rules should apply if, as discussed below, the governing law of Zimbabwe, while in general terms recognizing some of the rights Plaintiffs invoke here under the ATCA, does not define specific causes of action to vindicate the particular claims asserted, or does not permit recovery of the kinds of damages Plaintiffs seek, or may otherwise bar liability, so that the effect of applying the entire municipal law of Zimbabwe to address the violations of international law here alleged would be to defeat some or all of Plaintiffs' claims and thus the remedy the ATCA contemplated?

Similar concerns have been articulated by other courts that have encountered and addressed these complexities in determining the source of substantive law to apply in adjudicating ATCA claims. The doctrinal underpinnings of the dilemma is best captured in the divergent approaches expressed by the concurring Opinions of the Circuit Court in Tel-Oren v. Libyan Arab Republic,*fn16 as to whether the ATCA, beyond conferring federal court jurisdiction, creates a cause of action, and as to the sources of any substantive decisional rules governing suits invoking the statute.

As a threshold matter, as Judge Bork observed, international law ordinarily does not create causes of action conferring upon individuals a self-executing right to sue to vindicate particular violations of universally recognized norms.*fn17 Rather, many international human rights instruments merely enunciate in expansive generalities particular principles, aspirations and ideals of universal and enduring significance. These sources serve as fonts of broadly accepted behavioral norms that nations can draw upon in carrying out their obligations to their peoples. International law ordinarily leaves it to each sovereign state to devise whatever specific remedies may be necessary to give effect to universally recognized standards.*fn18 As noted by a leading commentator: "International human rights instruments do not legislate human rights; they `recognize' them and build upon that recognition [ ] `which assumes the human rights' preexistence in some other moral or legal order."*fn19

To these ends, various international declarations, covenants and resolutions catalogue rights all persons should enjoy; affirm the obligations of nations to ensure those rights by means of implementing legislation; exhort governments to protect and promote widely recognized rights; and pronounce the global community's condemnations and renunciations of wrongful practices.*fn20 In the words of Judge Bork: "Some define rights at so high a level of generality or in terms so dependent for their meaning on particular social, economic and political circumstances that they cannot be construed and applied by courts acting in a traditional adjudicatory manner."*fn21

These norms and practices acquire the status of customary "law of nations" only insofar as they ripen over time into settled rules widely recognized and enforced by international agreements, by judicial decisions, by the consistent usage and practice of states and by the "general assent of civilized nations."*fn22

But, because such customary principles and practices of sovereign states do not derive and acquire the status of law from the authoritative pronouncements of any particular deliberative body, they generally do not create specific "causes of action" or a self-executing right to sue entitling victims to institute litigation to vindicate violations of international norms.*fn23 As one court expressed this point: "While it is demonstrably possible for nations to reach some consensus on a binding set of principles, it is both unnecessary and implausible to suppose that, with their multiplicity of legal systems, these diverse nations should also be expected or required to reach consensus on the types of actions that should be made available in their respective courts to implement those principles."*fn24

Nonetheless, under Filartiga I, certain wrongful conduct violates the law of nations, and gives rise to a right to sue cognizable by exercise of federal jurisdiction under the ATCA, when it offends norms that have become well-established and universally recognized.*fn25

The Filartiga I court, however, did not explicitly address whether the federal right of action it inferred existed under the ATCA in fact derives from and is to be substantively adjudicated by principles drawn from international law or from federal or municipal law. Manifesting some ambiguity on this point, the court construed 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."*fn26 Rather, as stated above, the Second Circuit directed that once federal jurisdiction is properly exercised by means of the threshold determination that the claimant has asserted a recognized violation of international law, the rules of decision applicable to adjudication of the case must be decided by a choice of law inquiry employing the considerations set forth in Lauritzen.*fn27

In his Tel-Oren concurrence, Judge Edwards endorsed the view of the Second Circuit that ATCA itself creates a right to sue for alleged violations of the law of nations.*fn28 He voiced a reservation, however, that the Filartiga I formulation "is not flawless" and recognized that the task the ruling entrusts to the district court at the threshold jurisdictional finding is daunting.*fn29 On this point, he noted that the Filartiga I approach "places an awesome duty on federal district courts to derive from an amorphous entity — i.e., the `law of nations' — standards of liability applicable in concrete situations."*fn30

The difficulty inherent in the Filartiga I charge is compounded by the second phase of the inquiry the ruling mandates, that of deciding the substantive standards to apply in evaluating ATCA claims involving human rights abuses. The challenge has engendered significant conceptual division and divergent practices among the courts that have addressed the question. In Tel-Oren, for example, Judge Edwards suggested, as an alternative formulation to the Filartiga I approach, that litigation may be brought under ATCA asserting substantive rights of action defined as common law torts, with the rules of decision supplied by domestic law of the United States, as long as a violation of international law is also alleged.*fn31 The alternative also has been the subject of considerable differences among the courts and has generated numerous permutations and adaptations variously applying, as the basis of substantive law in ATCA adjudications, rules of decision drawn from: federal common law; the forum state; the foreign jurisdiction most affected; international law; or a combination of these sources.

In Adra v. Clift,*fn32 for example, the court applied the alternative formulation where the tort, that of abducting a child from a parent entitled to custody, was defined by municipal law, and the violation of the law of nations consisted of the misuse of a passport as the means to carry out the wrongful conduct. A variation of this approach was followed in Trajano v. Marcos,*fn33 where the Ninth Circuit endorsed the district court's application of the Tel-Oren alternative as modified to rely upon the domestic law of the foreign jurisdiction, rather than that of the United States, to provide the cause of action. But in Doe v. Unocal Corp.*fn34 the Ninth Circuit determined the liability of a private third-party in an ACTA claim by reference to international law, rather than the municipal law of the foreign state, or federal or forum state law, where the alleged violations implicate only peremptory norms (jus cogens).*fn35 In Hilao v. Marcos,*fn36 another panel of the same court held that ATCA creates a cause of action for violations of universal human rights standards and applied federal law to decide a survival of claim issue without any choice of law analysis or review of municipal law.

In Xuncax, however, the court rejected the domestic law right to sue alternative in favor of a different approach. The court applied violations of international law as the basis for both the exercise of ATCA jurisdiction and as the source of the pertinent substantive cause of action "without recourse to other law".*fn37 Noting that municipal law may be inadequate to address in a meaningful way alleged violations of international human rights, the court suggested that under the approach it proposed "courts will be freer to incorporate the full range of diverse elements that should be drawn upon to resolve international legal issues than they would if bound to straightforward recurrence to extant domestic law."*fn38

In Wiwa, the Second Circuit acknowledged these fundamental qualms and alternative formulations, but declined to reach the issue because its decision to sustain ATCA jurisdiction in the case before it was based on other grounds.*fn39 However, several considerations counsel against a narrow reading and rigid application of Filartiga I as compelling unyielding allegiance to municipal law derived from choice of law analysis to supply the exclusive substantive cause of action and rules of decision governing adjudication of the merits of international human rights claims invoking the ATCA.

First is the treatment of the issue by the district court on remand. Grappling with the difficulties its mandate from the Second Circuit presented, Judge Nickerson addressed the open questions head on.*fn40 While conducting the choice of law analysis enunciated by the Circuit Court's ruling, Judge Nickerson considered whether the "tort" to which that statute refers means "a wrong `in violation of the law of nations' or merely a wrong actionable under the law of the appropriate sovereign state?"*fn41

Judge Nickerson responded to this question by determining that the court's inquiry was not circumscribed by, nor did it necessarily end with, the municipal law of the foreign state where the alleged international tort occurred. The interests of the foreign state were relevant in this context, but only "to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States."*fn42 Rather, the district court determined that definition of the relevant wrongful conduct should be guided by the norms and practices universally recognized by the international community, and not by the laws of a particular state. "[W]here the nations of the world have adopted a norm in terms so ...


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