Beschluß des Distriktsgerichts der Vereinigten Staaten von Amerika für den Distrikt vonHawaii vom 18. Juli 1986 zur Frage der Immunität eines StaatsoberhauptesSource: Archiv des Völkerrechts, 26. Bd., 2. H., STAATSOBERHAUPT UND VÖLKERRECHT /HEAD OF STATE AND INTERNATIONAL LAW (1988), pp. 240-246Published by: Mohr Siebeck GmbH & Co. KGStable URL: http://www.jstor.org/stable/40798370 .

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ENTSCHEIDUNGEN

Beschluß des Distriktsgerichts der Vereinigten Staaten von Amerika für den Distrikt

von Hawaii vom 18. Juli 1986

zur Frage der Immunität eines Staatsoberhauptes"*

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

DECISION AND ORDER GRANTING DEFENDANTS MOTION TO DISMISS

Darüber, ob ein früheres Staatsoberhaupt Immunität für Akte während seiner Amtszeit genießt, gibt es keine Präjudizien und keine gesicherte Meinung in der Rechtslehre. Die Immunität des Staatsoberhauptes ist kein Privileg nach dem common law, aber sie ergibt sich auf Grund der internationalen Courtoisie. Sie wird von der Regierung auf Grund von deren freier Entscheidung gewährt. Ob sie auch früheren Staatsoberhäuptern zusteht, ist keine Rechtsfrage.

Eine Rechtsfrage ist dagegen das Problem, ob die Act of State-Doktrin anzu- wenden ist. Sie verbietet, Akte eines fremden Staatsoberhauptes, die in seiner amtlichen Funktion gesetzt sind, rechtlich zu würdigen.

Entscheidungs formel: It is hereby ordered that the defendant's Motion to Dismiss be, at the same

time is granted.

Aus den Gründen:

This motion having come on for hearing before the court on July 8, 1986 at 10:30 a.m., Richard Hibey and Lex Smith appearing on behalf of the movant Ferdinand E. Marcos, Sherry Broder, Robert Swift appearing on behalf of the plaintiffs, with assistance from Paul Hoffman and Jon Van Dyke during the argument, and the court having considered the memoranda and arguments in support and in opposition thereto, and being fully apprised of the premises therein, the court rules as follows:

I. FACTS The Hilao case (Civil No. 86-390) is a class action brought by four individuals

alleged to be victims of torture by „paramilitary forces" of the Marcos govern- ment, and the parents of a woman who allegedly was murdered by those forces.

* Auszugsweise wiedergegeben nach einem von Herrn Prof. Dr. Wilfried Fiedler, Saarbrücken, zur Verfügung gestellten Abdruck der Entscheidung. Civil No. 86-390. Am selben Tage ergingen unter den Civil No. 86-0225 und Civil No. 86-0207 wörtlich übereinstimmende Entscheidungen mit demselben Rubrum.

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Entscheidungen 241

Plaintiffs seek compensatory and punitive damages arising out of Marcos' alleged tortious acts resulting in „mass torture, murder, disapearance and presu- med death of thousands of citizens of the Republic of the Philippines."

Complaint 1. The plaintiffs also assert a Rule 23 (b) (3) class action on behalf of all victims

of repression under the Marcos regime is warranted here because there are pre- dominating issues of law and fact, to wit:

a. Whether defendants authorized and engaged in the systematic torture and murder of the plaintiffs and class members;

b. Whether such torture and murder violated international law; c. Whether the conduct of defendants violates the norms of civilized behavior;

and d. Whether plaintiffs and the members of the class are entitled to recover

damages as a result of the aforesaid torture and murders.

Complaint 14. All the Hilao plaintiffs are citizens and residents of the Philippines. They assert

federal jurisdiction under 28 U.S.C. § 1350, the alien tort claims act.

II. STANDARD

Rule 12 (b) of the Federal Rules of Civil Procedure provides in pertinent part: Every defense, in law or fact, to a claim for relief in any pleading, whether a

claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter ... (6) failure to state a claim upon which relief may be granted . . . In considering a motion to dismiss for failure to state a claim, the general rule

is that a complaint should not be dismissed on the pleadings „unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gillespie v. Civiletti, 629 F. 2d 637 (9th Cir. 1980); California ex. rei. Younger v. Mead, 618 F. 2d 618, 620 (9th Cir. 1980).

In evaluating a complaint, any doubts should be construed in favor of the pleader. Ernest W. Hahn, Inc. v. Codding, 615 F. 2d 830, 834-36 (9th Cir. 1980). The complaint must be liberally construed, giving the plaintiff the benefit of all proper inferences. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). All that must be contained in the complaint is a „short and plain statement of the claim that will give [the defendant] fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

On a motion to dismiss for lack of federal subject matter jurisdiction, it is incumbent upon the plaintiff to establish by competent proof that federal subject matter jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 277 - 78 (1936).

III. ISSUES A. JURISDICTION

1. Under Section 1350 28 U.S.C. § 1350 states:

The district courts shall have 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.

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242 Entscheidungen

The „alien tort claims statute," as it has come to be called, has an obscure history. In HT. v. Vencap, Ltd., 519 F. 2d 1001 (2d Cir. 1975), Judge Friendly remarked:

. . . This old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seem to know whence it came. We dealt with it some years ago in Khedival Line, S.A.E. v. Seafarers' Union, 278 F. 2d 49, 52 (2 Cir. 1960) (per curiam). At that time we could find only one case where jurisdiction under it had been sustained, in that instance violation of a treaty, . . . there is now one more. . . . Id. at 1015.

Earlier cases defined the „law of nations" rather narrowly. Judge Friendly ob- served that:

. . . [a] violation of the law of nations arises only where there has been 'a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.' . . . [citations omitted]

HT v. Vencap, Ltd., supra at 1015. In Dreyfus v. von Finck, 534 F. 2d 24, 30-31 (2d Cir. 1976), cert, denied, 429

U.S. 835 (1976), the Second Circuit stated: There has been little judicial interpretation of what constitutes the law of

nations and no universally accepted definition of this phrase . . . [citations omitted]. There is a general consensus, however, that it deals primarily with the relationship among nations rather than among individuals. 'It is termed the Law of Nations - or International Law - because it is relative to States or Political Societies and not necessarily to individuals, although citizens or sub- jects of the earth are greatly affected by it.' von Redlich, The Law of Nations 5 (2d ed. 1937).

More importantly for purposes of this lawsuit, violations of international law do not occur when the aggrieved parties are nationals of the acting state. This was pointed out by Mr. Justice White in his dissenting opinion in Banco Nacio- nal de Cuba v. Sabbatino, 376 U.S. 398, 441- 442, 84 S. Ct. 923, 947, 11 L. Ed. 2d 804, 831 (1964), and it is the clear holding in Salimoff & Co. v. Standard Oil Co., 262 N.Y. 220, 186 N. E. 679 (1933), cited by both the majority and dissenting opinions. In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), however, the Second

Circuit took a divergent approach. In Filartiga, the plaintiffs were two Paraguayan nationals living in the United States under permanent resident alien status. The defendant was a former Paraguayan official who had remained illegally in the United States after expiration of his tourist visa. The plaintiffs alleged that the defendant had kidnapped and tortured to death an individual who was the plaintiffs' brother and son in retaliation for his father's political activities. The defendant then brought the deceased's sister to his home and confronted her with the body.

The plaintiffs filed suit alleging jurisdiction under section 1350. The district court dismissed the complaint, relying on HT v. Vencap, Ltd., supra and Dreyfus v. von Finck, supra. The Second Circuit reversed. The Second Circuit concluded, after a review of international law authorities that:

Having examined the sources from which customary international law is derived - the usage of nations, judicial opinions and the works of jurists - we conclude that official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between

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Entscheidungen 243

treatment of aliens and citizens. Accordingly, we must conclude that the dictum in Dreyfus v. von Finds, supra, 534 F. 2d at 31, to the effect that 'violations of international law do not occur when the aggrieved parties are nationals of the acting state,' is clearly out of tune with the current usage and practice of inter- national law. The treaties and accords cited above, as well as the express foreign policy of our own government, all make it clear that international law confers fundamental rights upon all people vis-a-vis their own governments. . . .

Id. at 884. The Filartiga court emphasized that only those acts which constituted clear

violations of international law would be cognizable under section 1350. The court concluded that official torture was universally condemned by all nations, and as such constituted a violation of international law:

Construing this rarely-invoked provision, we hold that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction. Id. at 878. Since Filartiga, a consensus on the scope of section 1350 jurisdiction has not

emerged. The fractionalization of opinions on the issue is best demonstrated in the three concurring opinions in Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (D.C. Cir. 1984), cert, denied, - U.S. -, 105 S. Ct. 1354 (1985). In that case, a group of American, Israeli and Dutch citizens who were the victims of a terrorist attack in Israel sued their alleged tormentors in federal court. The alien plaintiffs sued under section 1350. The district court dismissed the complaint. The three judges on the panel affirmed, but for widely differing reasons.

Judge Edwards agreed with the Filartiga analysis, but distinguished the Tel- Oren facts. First, Judge Edwards concluded that international terrorism was not universally recognized to be a violation of the law of nations, hence there was no cause of action under section 1350. Id. at 795 - 96. Judge Edwards also noted that Filartiga required that the tortious act alleged must be official or state-implicated torture. In Tel-Oren, the torture alleged was committed by the Palestine Libera- tion Organization, which is not recognized as a member of the community of nations, thus no „state action" was possible. Id. at 791 - 92. Judge Edwards was not willing to find that a private dispute between individuals was cognizable under the law of nations. Only when the acts complained of were „official" would the law of nations be implicated, giving rise to a cause of action under section 1350.

Judge Bork took the position that, absent a private right of action created by treaty, international law does not authorize individuals to vindicate rights by bringing actions in either international or municipal tribunals, agreeing with Drey- jus v. von Finch, supra. He disagreed with Filartiga's assumption that section 1350 gave the federal courts jurisdiction and conferred a private cause of action for violation of international human rights. Id. at 801.

Judge Robb reasoned alternatively that the case should be dismissed because it was simply non-justiciable. He concluded by saying:

We ought not to parlay a two hundred years-old statute into an entree into so sensitive an area of foreign policy. We have no reliable evidence whatsoever as to what purpose this 'legal Lohengrin,' as Judge Friendly put it, was intended to serve. ... [citation omitted]. We ought not to cobble together for it a modern mission on the vague idea that international law develops over the years. Law may evolve, but statutes ought not to mutate. To allow § 1350 the

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244 Entscheidungen

opportunity to support future actions of he sort both countenanced in Filartiga and put forward here is to judicially will that statute a new life. Every conside- ration that informs that sound application of the political question doctrine militates against this result. ...

Id. at 827. Thus, Filartiga did not conclusively settle the question of the scope of section

1350. At least two lines of thought, those advanced by Judges Bork and Robb, suggest that section 1350 does not confer upon the federal courts the jurisdiction to adjudicate questions of international human rights. Even the most liberal inter- pretation of section 1350 jurisdiction requires that the plaintiffs allege that the tortious acts were official or committed under the authority of law.

In sum, the future of section 1350 jurisdiction as a vehicle for opening the federal courts to the world as a tribunal for the vindication of international human rights is still very much in doubt.

B. HEAD OF STATE IMMUNITY

Marcos claims he should be immune from suit based on „head of state" immunity. He argues first that he is the de jure president of the Philippines, based on the results of the elections conducted in the Philippines in February of 1986. He argues secondly that even if he is no longer the de jure president of the Philip- pines, he is immune from suit for acts committed during his actual tenure as the President of the Philippines. Because the question of immunity is jurisdictional, the court must address this issue first.

1. De Jure Status It has been the rule that „the judiciary is not to second guess the determination

of the other branches as to who is the sovereign, de jure or de facto y of a territory." Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 791 n. 21 (D. C. Cir. 1984) (Edwards, J., concurring), quoting, Oetjen v. Central Leather Co., 246 U. S. 297 (1918). This court will not intrude into the foreign affairs powers of the execu- tive branch, which currently recognizes the Aquino government as the lawful government of the Philippines.

2. Former Head of State Immunity Far more problematic is Marcos' claims to immunity based on his status as the

former head of state of the Philippines. There can be no question that Marcos was the duly recognized head of state up to February 25, 1986. The issue is whe- ther his status as a former head of state accords him any immunity from suit, and if so, the scope of that immunity. Plaintiffs would argue that former heads of state enjoy no immunity, and if they do, such immunity does not extend to acts of torture. Marcos has argued that such immunit is absolute for acts committed during the term of his presidency.

The scope of head of state immunity has not been discussed at length in the case law, although it has been the subject of scholarly publications. See, e. g., Note, Resolving the Confusion Over H*ead of State Immunity: The Defined Right of Kings, 86 Colum. L. Rev. 169 (1986). Unlike foreign sovereign immunity, which has been codified in order to permit judicial interpretation, there is no readily ascertainable standard of judicial review.

Head of state immunity is not a common law privilege, but one which arises out of considerations of international comity. Any immunity granted to an alien within the borders of another country is a privilege granted by the receiving state. The extent of the immunity is informed by the receiving country's commitment

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Entscheidungen 245

to certain international compacts and by considerations of reciprocity. See Resol- ving the Confusion Over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169, 169 (1986). Head of state immunity has been afforded to foreign heads of state pursuant to a suggestion of immunity by the State Department. No independent judicial source for head of state immunity appears to exist. Id. at 171 - 73.

Marcos presents an argument based on international law authorities and on analogy to diplomatic immunity. In effect, he is asking this court to find a judi- cial source for head of state immunity based on precedent. However, head of state immunity is not derived from judicial precedent. It is a privilege which to date has been accorded only by the executive branch in furtherance of its sovereign authority over foreign affairs.

Commentators have complained that head of state immunity is accorded by the State Department in a rather expedient fashion. Id. at 182-87. However, much as the courts may question the wisdom of subjecting former heads of state to liability for acts committed while in office, that decision is not one for the judicial branch. Until such time as head of state immunity is made a creature of judicial inter- pretation, this court will not intrude on the prerogative of the executive branch to make such determinations.

That is not to say, however, that the federal courts are powerless to avoid entanglement in issues outside the scope of their competence. The courts' power to do so, however, has developed not in the form of a doctrine of immunity, but in the form of the judicial doctrines of „act of state" and „political question".

C. ACT OF STATE DOCTRINE

The „political question" doctrine and its foreign relations counterpart, the „act of state" doctrine are discretionary rules developed by the judicial branch.

Essentially, the act of state doctrine is „the principle that the conduct of one independent government cannot be questioned in the courts of another. Getjen v. Central Leather Co., 246 U. S. 297, 303 (1918). The act of state doctrine in its traditional formulation precludes the courts from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory. Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 423 (1964). The Sabbatino court noted that, although the Constitution does not compel the act of state doctrine, the doctrine has „constitutional underpinnings". It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. 376 U. S. at 423. The court went on to say that the doctrine's „continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters depending on for- eign affairs." Id. at 427 - 28. The doctrine is a judicially created one, and is not dependent on any declarations by the executive branch regarding the propriety of judicial resolution of an issue.

The act of state doctrine also forbids review by the United States courts of the acts of a foreign head of state acting in his official capaciy. See DeRoburt v. Gannett Corp., 733 F. 2d 701 (9th Cir. 1984), cert, denied, - U. S. -, 105 S. Ct. 909 (1985). Cf. Jimenez v. Aristequieta, 311 F. 2d 547, 557 (5th Cir. 1962), cert, denied, 373 U. S. 914 (1963), reh'ng denied, 374 U. S. 858 (1963).

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246 Entscheidungen

IV. CONCLUSION

At the outset, it is clear that the question of jurisdiction over these claims is far from settled. However, the court will assume for purposes of argument that the Ninth Circuit would adopt the formulation of section 1350 jurisdiction set forth in Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980). However, under the facts of this case, even the most liberal interpretation of section 1350 does not prevent entanglement with the act of state doctrine.

To sustain jurisdiction under 28 U.S.C. 1350, the plaintiffs must allege that the tortious acts were official acts or acts committed under color of law. Further, the plaintiffs cannot argue that Marcos himself committed the acts of torture, as was the case in Filartiga. Rather they seek to show that the torture and murder was conducted by agents of Marcos pursuant to a policy of „systematic murder and torture." Thus, the theory of liability must be that Ferdinand Marcos in his capacity as President of the Philippines engaged in a systematic policy of murder and torture in violation of the tenets of the law of nations.

This theory of recovery requires precisely the type of inquiry in which the federal courts have refused to engage under the act of state doctrine. It is beyond that capacity or function of the federal courts to subject the official acts or policies of the head of a foreign state to traditional standards of judicial review.

The dilemma faced by the plaintiffs here was illustrated in oral argument. For purposes of arguing that jurisdiction existed under section 1350, Marcos' actions were characterized as a „systematic governmental operation to suppress dissent." In contrast, when the issue of act of state arose, this case was characterized as one involving „discrete violations" of international human rights. Plaintiffs cannot have it both ways. However Marcos' acts are characterized, it is clear that the presentation of this case would require examination of official policies of the Marcos administration. Regardless of the semantics, these cases would still involve judicial review of the acts of the duly recognized head of a foreign sovereign committed under authority of law. Such cases have long been considered non-justiciable under the act of state doctrine.

Because the court has determined that this case is non-justiciable under the act of state doctrine, it need not reach the issues of forum non conveniens, personal jurisdiction, and the statute of limitations.

For the foregoing reasons, IT IS HEREBY ORDERED THAT the defendant's Motion to Dismiss be,

and the same is GRANTED. DATED: Honolulu, Hawaii, Juli 1986

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