Chapter VIII. Decisions of national tribunals

United States of America

1. United States Federal Communications Commission

   ORDER ON RECONSIDERATION REGARDING INTERNATIONAL TELEPHONE

   “CALLBACK” SERVICE1

   In June 1995, the Federal Communications Commission (FCC) in the United States adopted an Order on Reconsideration confirming that international telephone “callback” service using uncompleted call signaling violated neither United States nor international law. (Callback offerings enable customers abroad to access United States international service and pay United States rates for international calls rather than the generally higher prices charged by foreign carriers.) The Commission said that callback is in the public interest because the resulting competition between United States callback providers and foreign carriers charging higher rates ultimately lowers foreign rates to the benefit of consumers and industry abroad and in the United States. The Commission added, however, that United States-based callback operators may not provide callback using uncompleted call signaling in foreign countries where this offering is expressly prohibited by law.

   After the Commission in 1994 authorized United States companies to resell international switched services and offer callback, AT&T requested reconsideration on the grounds that callback violated the federal wire fraud statute and the United States Communications Act. The Commission subsequently expanded the proceeding to address questions of international law and comity which had been presented by a number of foreign Governments and carriers.

   The Commission concluded that callback using uncompleted call signaling does not violate international law. It agreed with the United State Department of State that callback is not prohibited or otherwise restricted by regulations adopted by the International Telecommunication Union (International Telecommunication Regulations; Final Acts of the World Administrative Telegraph and Telephone Conference, Melbourne 1988). FCC noted, however, that some foreign countries have prohibited this offering within their territories and reaf-firmed its view that, as a matter of international comity, United States-based callback operators are not authorized to provide callback in those countries whose laws explicitly prohibit this offering. The FCC Order will be communicated to foreign Governments, and any such Governments which prohibit callback may so notify the United States Government, which will maintain a file of all such communications.

2. S. KADIC, on her own behalf and on behalf of her infant sons Benhaim and Ognjen, Internationalna Iniciativa Zena Bosne I Hercegovine “Biser,” and Zene Bosne I Hercegovine, Plaintiffs-Appellants, v. Radovan KARADZIC, Defendant-Appellee

   Jane Doe I, on behalf of herself and all other similarly situated; and Jane

   Doe II, on behalf of herself and as administratrix of the estate of her deceased mother, and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Radovan Karadzic, Defendant-Appellee.2

   Nos. 1541, 1544, Dockets 94-9035, 94-9069. UNITED STATES COURT OF APPEALS, SECOND CIRCUIT

   ARGUED 20 JUNE 1995

   DECIDED 13 OCTOBER 1995

   REHEARING DENIED 6 JANUARY 1996

   Two groups of victims from Bosnia and Herzegovina brought actions against the self-proclaimed president of unrecognized Bosnian-Serb entity under, inter alia, Alien Tort Claims Act for violations of international law. The United States District Court for the Southern District of New York, Peter K. Leisure, J., 866 F. Supp. 734, dismissed actions for lack of subject-matter jurisdiction, and plaintiffs appealed. The Court of Appeals, Jon O. Newman, Chief Judge, held that:

   (1) plaintiffs sufficiently alleged violations of customary international law and law of war for purposes of Alien Tort Claims Act; (2) plaintiffs sufficiently alleged that unrecognized Bosnia-Serb entity of “Srpska” was a “State,” and that defendant had acted under colour of law for purposes of international law violations requiring official action; defendant was not immune from personal service of process while invitee of United Nations; (4) actions were not precluded by political question doctrine; and (5) defence under act of state doctrine was waived.

   Reversed and remanded.

   Beth Stephens, New York City (Matthew J. Chachère, Jennifer Green, Peter Weiss, Michael Ratner, Jules Lobel, Center for Constitutional Rights, New York City; Rhonda Copelon, Celina Romany, International Women’s Human Rights Clinic, Flushing, NY; Judith Levin, International League of Human Rights, New York City; Harold Hongju Koh, Ronald C. Slye, Swati Agrawal, Bruce Brown, Charlotte Burrows, Carl Goldfarb, Linda Keller, Jon Levitsky, Daniyal Mueenuddin, Steve Parker, Maxwell S. Peltz, Amy Valley, Wendy Weiser, Allard

   K. Lowenstein International Human Rights Clinic, New Haven, CT, on the brief), for plaintiffs-appellants, Jane Doe I and Jane Doe II.

   Catharine A. MacKinnon, Ann Arbor, MI (Martha F. Davis, Deborah A. Ellis,

   Yolanda S. Wu, NOW Legal Defense and Education Fund, New York City, on the brief), for plaintiffs-appellants Kadic, Internationalna Iniciativa Zena Bosne I Hercegovine, and Zena Bosne I Bosne I Hercegovine.

   Ramsey Clark, New York City (Lawrence W. Schilling, New York City, on the brief), for defendant-appellee.

   Drew S. Days, III, Solicitor General, and Conrad K. Harper, Legal Adviser,

   Department of State, Washington, DC submitted a Statement of Interest of the United States; Frank W. Hunger, Assistant Attorney General, and Douglas Letter, Appellate Litigation Counsel, on the brief.

   Karen Honeycut, Vladeck, Waldman, Elias & Engelhard, New York, NY, submitted a brief for amici curiae Law Professors Frederick M. Abbott et al. Nancy Kelly, Women Refugee Project, Harvard Immigration and Refugee Program, Cambridge and Somerville Legal Services, Cambridge, Mass., submitted a brief for amici curiae Alliances—an African Women’s Network et al.

   Juan E. Mendez, Joanne Mariner, Washington, DC; Professor Ralph G.

   Steinhardt, George Washington University School of Law, Washington, DC; Paul L. Hoffman, Santa Monica, CA; Professor Joan Fitzpatrick, University of Washington School of Law, Seattle, WA, submitted a brief for amicus curiae Human Rights Watch.

   Stephen M. Schneebaum, Washington, DC, submitted a brief for amici curiae

   The International Human Rights Law Group et al.

   Before: NEWMAN, Chief Judge, FEINBERG and WALKER, Circuit Judges.

   Jon O. NEWMAN, Chief Judge:

   Most Americans would probably be surprised to learn that victims of atrocities committed in Bosnia are suing the leader of the insurgent Bosnian-Serb forces in a United States District Court in Manhattan. Their claims seek to build upon the foundation of this Court’s decision in Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir.1980), which recognized the important principle that the venerable Alien Tort Act, 28 U.S.C. § 1350 (1988), enacted in 1789 but rarely invoked since then, validly creates federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations. The pending appeals pose additional significant issues as to the scope of the Alien Tort Act: whether some violations of the law of nations may be remedied when committed by those not acting under the authority of a State; if so, whether genocide, war crimes, and crimes against humanity are among the violations that do not require State action; and whether a person, otherwise liable for a violation of the law of nations, is immune from service of process because he is present in the United States as an invitee of the United Nations.

   These issues arise on appeals by two groups of plaintiffs-appellants from the 19 November 1994 judgment of the United States District Court for the Southern District of New York (Peter K. Leisure, Judge), dismissing, for lack of subject-matter jurisdiction, their suits against defendant-appellee Radovan Karadzic, President of the self-proclaimed Bosnian-Serb republic of “Srpska.” Doe v. Karadzic, 866 F.Supp. 734 (S.D.N.Y. 1994) (“Doe”). For the reasons set forth below, we hold that subject-matter jurisdiction exists, that Karazdic may be found liable for genocide, war crimes and crimes against humanity in his private capacity and for other violations in his capacity as a State actor, and that he is not immune from service of process. We therefore reverse and remand.

   BACKGROUND

   The plaintiffs-appellants are Croat and Muslim citizens of the internationally recognized nation of Bosnia and Herzegovina, formerly a republic of Yugoslavia. Their complaints, which we accept as true for purposes of this appeal, allege that they are victims, and representatives of victims, of various atrocities, including brutal acts of rape, forced prostitution, forced impregnation, torture and summary execution, carried out by Bosnian-Serb military forces as part of a genocidal campaign conducted in the course of the Bosnian civil war. Karadzic, formerly a citizen of Yugoslavia and now a citizen of Bosnia and Herzegovina, is the President of a three-man presidency of the self-proclaimed Bosnian-Serb republic within Bosnia and Herzegovina, sometimes referred to as “Srpska,” which claims to exercise lawful authority, and does in fact exercise actual control, over large parts of the territory of Bosnia and Herzegovina. In his capacity as President, Karadzic possesses ultimate command authority over the BosnianSerb military forces, and the injuries perpetrated upon plaintiffs were committed as part of a pattern of systematic human rights violations that was directed by Karadzic and carried out by the military forces under his command. The complaints allege that Karadzic acted in an official capacity either as the titular head of Srpska or in collaboration with the government of the recognized nation of the former Yugoslavia and its dominant constituent republic, Serbia.

   The two groups of plaintiffs asserted causes of action for genocide, rape...