[*1] Report and Recommendation of Magistrate Judge James Francis,
dated July 1, 2002 adopted. Judgment entered in favor of Plaintiffs
and against defendant ZANU-PF in a total amount of $71,250,453.00
representing compensatory damages of $20,250,453.00 and punitive
damages of $51,000,000.00.
CORE TERMS: international
law, torture, human rights, inhuman, cruel, degrading, municipal
law, choice of law, universal, customary, domestic, religion,
covenant, universally recognized, punitive damages, cause of action,
killing, extrajudicial, systematic, internationally, federal law,
international human rights, decisional, conscience, violence,
assembly, manifest, common law, national security, causes of action
COUNSEL: For Adella Chiminya Tachiona, Efridah
Pfebve, Elliot Pfebve, Evelyn Masaiti, Maria Del Carmen Stevens,
PLAINTIFFS: Paul Sweeney, Hogan & Hartson, LLP, New York,
For Adella Chiminya Tachiona, Efridah Pfebve,
Elliot Pfebve, Evelyn Masaiti, Maria Del Carmen Stevens, PLAINTIFFS:
Theodore M Cooperstein, Theodore M Cooperstein, PC, Washington,
JUDGES: VICTOR MARRERO, United States District
OPINIONBY: VICTOR MARRERO
OPINION: DECISION AND ORDER
VICTOR MARRERO, United States District Judge.
OF CHOICE OF LAW
OF FEDERAL COMMON LAW POST-FILARTIGA
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[*2]
a. The Restatement of Foreign Relations
b. The Civil and Political Rights Covenant
c. Recognition by Court and Other Adjudicatory
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
a. Racial Discrimination
b. Seizure of Property
ONE AND TWO
1. Extrajudicial Killing
THREE AND FOUR
1. Loss of Enjoyment of Political Rights
2. Loss of Property
SIX AND SEVEN
1. Systematic Racial Discrimination
2. Loss Home, Destruction of Business and Seizure
in this matter, all citizens of Zimbabwe, brought suit alleging
violations of the Alien Tort Claims Act (the "ATCA"),
n1 the Torture Victim Protection Act (the "TVPA") n2,
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' [*3] 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. n3
n1 See 28 U.S.C. § 1350.
n2 See Pub. L. No. 102-256,
106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note).
n3 See Tachiona v. Mugabe, 169 F. Supp. 2d 259
(S.D.N.Y. 2001) ("Tachiona I"). The United States
(the "Government"), which had filed a Suggestion of
Immunity on behalf of Mugabe, moved for reconsideration, arguing
that the Court's exercise of jurisdiction over ZANU-PF grounded
on personal service on Mugabe was impermissible under federal
law and international principles governing sovereign and diplomatic
immunity that the Government suggested applied to Mugabe. The
Court denied the Government's motion. See Tachiona v. Mugabe, 186 F. Supp. 2d 383 (S.D.N.Y. 2002)
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. n4
n4 See Tachiona v. Mugabe, 216 F. Supp. 2d 262
(S.D.N.Y. 2002) ("Tachiona III").
regard to the ATCA claims, the Court determined that under its
reading of applicable Second Circuit doctrine, as articulated
in Filartiga v. Pena-Irala, n5 it was required to perform a choice[*5]
of law analysis to determine the appropriate substantive law governing
the adjudication of ATCA disputes alleging human rights abuses.
n6 The Second Circuit recently reiterated this approach. In dictum
in Wiwa v. Royal Dutch Petroleum Co., n7 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."
n5 630 F.2d 876 (2d Cir.
1980) ("Filartiga I").
n6 See Tachiona III, 216 F. Supp. 2d at 268-69.
n7 226 F.3d 88, 105 n.12
(2d Cir. 2000), cert. denied, 532 U.S. 941 (2001).
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. [*6] 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.
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.
A. LIMITATIONS OF CHOICE OF LAW
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.
undertaking the choice of law analysis Filartiga I instructs,
the Court is obliged, as a context for its ruling, to express
some[*7] 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?
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.
n8 Consequently, the governing rules the inquiry would compel
would[*8] 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. n9
n8 See Babcock v. Jackson, 12 N.Y.2d 473, 191
N.E. 2d 279, 284, 240 N.Y.S.2d 743 (N.Y. 1963); Restatement
(Second) of Conflict of Laws (1971) § 6 cmt. f. ("In general,
it is fitting that the state whose interests are most deeply affected
should have its local law applied.").
n9 See Restatement (Second)
of Conflict of Laws, supra § 6 cmt. f; see also Richards v.
United States, 369 U.S. 1, 11, 7 L. Ed. 2d 492, 82 S. Ct. 585
(1962) (holding that under the Federal Tort Claims Act the
reference to "law" is to "the whole law of the
State where the act or omission occurred," including its
choice of law rules).
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[*9] 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."
n10 Lauritzen v. Larsen,
345 U.S. 571, 591, 97 L. Ed. 1254, 73 S. Ct. 921 (1953); see
also Richards, 369 U.S. at 13-14.
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
[*10]that local law may defeat the purposes of the ATCA. n11
n11 See, e.g., Filartiga v. Pena-Irala, 577 F. Supp. 860,
863 (E.D.N.Y. 1984) ("Filartiga II"),; Xuncax v. Gramajo, 886 F. Supp. 162, 189-91
(D. Mass. 1995); Forti v. Suarez-Mason, 672 F. Supp. 1531,
1547-48 (N.D. Cal. 1987) ("Forti I").
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." n12 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[*11] 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." n13
n12 Filartiga I, 630 F.2d
at 889 (citing Home Ins. Co. v. Dick, 281 U.S. 397, 74
L. Ed. 926, 50 S. Ct. 338 (1930)); see also Jeffrey M. Blum
and Ralph G. Steinhardt, (1981).
n13 Filartiga I, 630 F.2d
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[*12] 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. n14 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. n15 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.
n14 See Wiwa, 226 F.3d at 106; Filartiga
I, 630 F.2d at 887.
n15 See Filartiga II, 577 F. Supp. at 864 (finding
on remand that choice of law analysis required application of
Paraguay law because all of the parties were residents of that
country and the underlying events happened there); see also Restatement
(Second) of Federal Jurisdiction over International Human Rights
Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala,
22 Harv. Int'l L.J. 53, 97-98 Conflict of Laws, supra §
6 cmt. f.
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
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, n16 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.
n16 233 U.S. App. D.C.
384, 726 F.2d 774 (D.C. Cir. 1984).
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. n17 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. n18 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
n17 See id. at 816-17.
n18 See Restatement (Third)
of the Foreign Relations Law of the United States (1987) § 703
cmt. c. [hereinafter the "Restatement of Foreign Relations"].
n19 The International Bill
of Rights 12, 15 (Louis Henkin, ed.) (1981) [hereinafter "The
International Bill of Rights"].
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. n20 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." n21
n20 See, generally, Universal
Declaration of Human Rights (the "Universal Declaration"),
G.A. Res. 217A(III), 3 U.N. GAOR, U.N. Doc. A/810 (1948), reprinted
in United Nations Centre for Human Rights, Human Rights: A Compilation
of International Instruments (hereinafter "International
Instruments"), Vol. I, Pt. 1, at 1-7 (1994); Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(the "Torture Convention"), G.A. Res. 39/46, 39 U.N.
GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1984), reprinted
in International Instrument, supra, Vol. I, Pt. 1, at 293-307;
International Covenant on Civil and Political Rights (the "Civil
and Political Rights Covenant" or the "Covenant"),
G.A. Res. 2200A(XXI), 21 U.N. GAOR Supp. (No. 16), at 52, U.N.
Doc. A/6316 (1966), reprinted in International Instruments, supra,
Vol. I, Pt. 1, at 21-40; African Charter on Human and Peoples'
Rights (the "African Charter"), OAU Doc. CAB/LEG/67/3
rev. 5, 21 I.L.M. 58 (1982), reprinted in International
Instruments, supra, Vol. II (1997), at 330-346; American Convention
on Human Rights (the "American Convention"), OEA/Ser.
K/xvi/1.1, Doc. 65, Rev. 1. Corr. 1, Jan. 7, 1970, 9 I.L.M.
101 (1970), reprinted in International Instruments, supra,
Vol. II at 14-36; European Convention for the Protection of Human
Rights and Fundamental Freedoms (the "European Convention"),
213 U.N.T.S. 211, E.T.S. 5 (1950), reprinted in International
Instruments, supra, Vol. II at 73-91.
n21 Tel Oren, 726 F.2d
at 818 (Bork, J., concurring); see also
Xuncax, 886 F. Supp. at 180; but see Tel-Oren, 726 F.2d at 778 (Edwards, J., concurring) (noting
that in some cases, as in the United Nations Genocide Convention,
states have specifically committed to carry out their international
obligations through explicitly prescribed means, such as declaring
a form of conduct as defined to constitute a crime).
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."
n22 The Paguete Habana,
175 U.S. 677, 694, 44 L. Ed. 320, 20 S. Ct. 290 (1900); see
also Filartiga I, 630 F.2d at 880; Restatement
of Foreign Relations, supra § 102; Statute of the International
Court of Justice, June 26, 1945, Art. 38, 59 Stat. 1055, T.S.
No. 993, 3 Bevans 1179.
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. n23 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
n23 See Tel-Oren, 726 F.2d at 778 ("The
law of nations never has been perceived to create or define the
civil actions to be made available by each member of the community
of nations; by consensus, the states leave that determination
to their respective municipal laws.") (Edwards, J., concurring).
n24 Xuncax, 886 F. Supp.
at 180; see also Louis Henkin, Foreign Affairs and the Constitution
224 (1972) ("International law, itself, finally, does not
require any particular reaction to violations of law ....");
Restatement of Foreign Relations, supra § 703 cmt. c.
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.
n25 630 F.2d at 888;
see also Alvarez-Machain
v. United States, 266 F.3d 1045, 1050 (9th Cir. 2001)(to be
actionable under the ATCA, international norms must be "specific,
universal and obligatory."); Xuncax, 886 F. Supp. at 184
(citing Forti I, 672 F. Supp. at 1540).
Filartiga I court, however, [*19] 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." n26 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. n27
n26 630 F.2d at 887.
n27 See Lauritzen, 345 U.S. at 571. The Supreme
Court in Lauritzen, a maritime case, articulated seven factors
to be weighed in the relevant choice of law analysis: (1) place
of the wrongful act; (2) law of the flag; (3) allegiance or domicile
of the injured party; (4) allegiance of the defendant; (5) place
of contract; (6) inaccessibility of foreign forum; and (7) the
law of forum. See id. at 583-90.
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. n28 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. n29 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." n30
n28 726 F.2d at 780.
n29 Id. at 781.
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[*21] 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. n31
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.
n31 Id. at 782.
v. Clift, n32 for example, the court applied the alternative formulation
where the tort, that of abducting a child from a parent entitled
to custody, was defined[*22] 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, n33 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. n34 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). n35 In Hilao v. Marcos, n36 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.
n32 195 F. Supp. 857 (D.
Md. 1961). In Tel-Oren, Judge Edwards questioned the sufficiency
of the Adra court's determination that misuse of a passport could
rise to the level of a violation of international law for the
purposes of invoking ATCA jurisdiction.
726 F.2d at 787 (Edwards, J., concurring).
n33 978 F.2d 493, 503 (9th
Cir. 1992) ("Marcos I").
n34 John Doe I v. Unocal
Corp., 2002 U.S. App. LEXIS 19263, 2002 WL 31063976, at *11
(9th Cir. Sept. 18, 2002).
n35 But see 2002 U.S. App. LEXIS 19263, [WL] at
*27 (Reinhardt, J., concurring) (rejecting the majority's application
of international law and noting that "courts should not substitute
international law principles for established federal common law
or other domestic law principles ... unless a statute mandates
that substitution, or other exceptional circumstances exist.")
(emphasis in original).
n36 25 F.3d 1467, 1475-76
(9th Cir. 1994) ("Marcos II").
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". n37 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[*24] "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." n38
n37 886 F. Supp. at 182-83.
n38 Id.; see also Filartiga II, 577 F. Supp. at 863.
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. n39 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.
n39 226 F.3d 88 n.12.
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.
n40 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?" n41
n40 See Filartiga II, 577 F. Supp. at 862.
n41 Id. at 862.
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[*26] public policy of the United States."
n42 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. "Where the nations of
the world have adopted a norm in terms so formal and unambiguous
as to make it international 'law,' the interests of the global
community transcend those of any one state." n43 Consistent
with these principles, Judge Nickerson found that:
There is no basis for adopting a narrow interpretation
of [the ATCA] inviting frustration of the purposes of international
law by individual states that enact immunities for government
personnel or other such exemptions or limitations. The court concludes
that it should determine the substantive principles to be applied
by looking to international law, which, as the Court of Appeals
stated, "became a part of the common law of the United States
upon the adoption of the Constitution." n44
n42 Id. at 863-64.
n43 Id. at 863.
n44 Id. (quoting Filartiga
I, 630 F.2d at 886) (emphasis in original).
to the broader view of the scope of the ATCA that Judge Nickerson
propounded, Congress entrusted to the federal courts the task
of determining the substantive rights to be applied to ATCA claims
by reference to international standards, as well as the "power
to choose and develop federal remedies to effectuate the purposes
of the international law incorporated into United States common
law." n45 On this basis, the district court determined that
the laws defining substantive rights recognized by the foreign
state in the case before it (Paraguay) prohibited torture. The
court applied that body of law to determine liability, but also
found no provision in it authorizing punitive damages. Nonetheless,
Judge Nickerson awarded such damages in order to effectuate the
federal policy embodied in the ATCA and the clear objectives reflected
in the international prohibition against state-promoted torture.
n46 See id. at 867.
the broader approach adopted by the district court in Filartiga
II has gained recognition and acceptance by other federal courts
that have considered ATCA claims in the face of inadequate or
conflicting municipal law of the foreign state. Under these circumstances,
rather than relying wholesale on foreign municipal law, the courts
uniformly have undertaken to fashion a remedy by reference to
the full range of available decisional guides and sources, in
particular principles derived from federal common law. These precedents
speak to the shortcomings of an approach that would compel an
undeviating or even primary reliance on municipal law to adjudicate
claims under the ATCA.
for example, given the ATCA's silence concerning a claimant's
standing to bring suit to vindicate harms to another victim, the
district court sought a suitable rule of decision to adjudicate
claims for summary execution and disappearance based on injuries
to third persons. Relying on the doctrine that where federal legislation
creates a cause of action without specifying vital[*29] details
the courts look to analogous state law insofar as it would not
defeat the purposes of the federal statute, the Xuncax court determined
that the TVPA provided the most analogous remedy. n47 The court
also invoked the TVPA to apply Guatemala law, rather than a forum
state rule of decision which would have barred recovery, to decide
the right of a sibling to sue under the ATCA. n48
n47 886 F. Supp. at 191
(citing the TVPA and its legislative history as supporting the
court's approach); see also The Rules of Decision Act, 28 U.S.C.
§ 1652. The statute provides that: "The laws of the several
states, except where the Constitution or treaties of the United
States or Acts of Congress otherwise require or provide, shall
be regarded as rules of decision in civil actions in the courts
of the United States, in cases where they apply." 28 U.S.C.
n48 See Xuncax, 886 F. Supp. at 191-92.
in Forti I the district[*30] court faced a choice of whether to
apply a federal or state limitations period. It found a germane
analogy in the federal Civil Rights Act, n49 and did not feel
compelled to look beyond the relevant body of federal law to formulate
an appropriate decisional rule. n50
n49 42 U.S.C. § 1983.
n50 672 F. Supp. at 1547-48;
see also Marcos II,
25 F.3d at 1476 (applying federal Eighth Amendment and Civil
Rights Act decisional law in determining whether plaintiffs' cause
of action extinguished on defendant's death); Unocal, 2002
U.S. App. LEXIS 19263, 2002 WL 31063976, at *11 (applying
international law principles to determine the liability of a private
third-party for violations of international law).
several conceptual, policy and practical constraints caution against
strict adherence to municipal rules of the foreign state in defining
the scope of substantive rights and causes of action to be applied
in adjudicating ATCA claims, and counsel instead a measure of[*31]
flexibility, as reflected by the cases cited above, to enable
the courts to fashion remedies compatible with the principles
of federal common law and the content of universally recognized
norms of international law.
as the sources from which universal norms of international conduct
derive are often articulated as generalities or conclusory precepts,
equally so many principles of the organic law of sovereign states
are typically expressed in terms that are no less sweeping nor
any more self-executing. Pronouncements recognizing fundamental
rights governing the state's conduct in relation to its people
are not always accompanied by corresponding promulgations of specific
definitions and causes of action authorizing enforcement through
private suits. In consequence, in their assessments of ATCA claims,
courts looking to foreign municipal law are likely to encounter
common situations, as experienced in the cases discussed above
and by this Court in reviewing principles of Zimbabwe law in the
matter at hand, that raise significant choice of law impediments
to the application of the ATCA and hinder the furthering of the
goals of international standards.
municipal law, for example, [*32] may manifest general domestic
recognition of a fundamental norm without specifically elevating
it further into a defined private right of action. Local rules
may also provide a remedy that may not suffice to adequately highlight
and respond to the gravity of the conduct and the import of the
case. Or else the foreign law may contain no relevant decisional
rule at all. Or it may provide a standard that, if applied to
adjudicate specific ATCA claims, would dispose of the case in
a manner that would defeat a remedy consistent with fostering
the purposes of federal and international law. As succinctly phrased
by the Xuncax court: "Simply put, municipal law is ill-tailored
for cases grounded on violations of the law of nations."
n51 886 F. Supp. at 192.
situation may prevail for several reasons. Even today -- despite
evidence of more widespread recognition of universal standards
through the proliferation of international instruments among the
many sovereign nations in the world, with their[*33] multiplicity
of histories, cultures and customs, and diverse stages of development
-- there are many jurisdictions in which the rule of law as we
know it remains a relatively recent and still incipient adaptation.
Thus, in these states the enunciation of substantive definitions,
and elaboration of causes of action and corresponding decisional
rules necessary to govern all aspects of the full range of mature,
enforceable rights common in our jurisprudence, remain at various
rudimentary stages, if they exist at all.
limitation inherent in placing undue reliance on municipal law
of the foreign state in choice of law analysis is reflected in
actions, such as the case at bar, that charge egregious misconduct
by the sitting government itself through measures taken by the
highest ranking officers of the regime. These are the very officials
whose public duties encompass enacting, enforcing and construing
domestic laws, and deciding the state's compliance with international
norms. It is unlikely to escape the notice of government leaders
who defile the powers of their offices by resorting to the barbarism
of state-sponsored torture and murder, and to the brutalities
characteristic[*34] of inhuman treatment of their nation's own
people, to equally dishonor the municipal justice system and its
laws in order to immunize themselves from accountability and liability
for their wrongs. Doctrines such as absolute or qualified immunity
for the state and government personnel, statutes of limitations,
and definitions of state action and other exemptions, may be easily
perverted by self-serving enactments specifically designed to
shield the misconduct of the selfsame offenders whose deeds define
the deviation from universal norms, thereby subverting international
law. Were the federal courts obliged to give unremitting recognition
and deference to the substantive laws and defenses compelled by
municipal law under a choice of law analysis, in some instances
such application of foreign law could frustrate the right of action
the ACTA was designed to confer upon the victims of international
as described above, well-established, universal, and obligatory
norms defining rules of international conduct, evolve by custom
and usages of nations over time. They are further elaborated by
the works of reputable jurists and scholars and settled through
longstanding[*35] practice and application in judicial decisions
recognizing and enforcing those rules. n52 In consequence, because
customary international norms are not always fixed in codifications
or treaties, not every nation will necessarily reflect clearly
in its domestic jurisprudence principles that manifest its unequivocal
assent and adherence to universal standards that may override
n52 See The Paguete Habana, 175 U.S. at 700;
Filartiga I, 630 F.2d at 880.
same token, under customary practice in many global bodies, the
declarations, resolutions and covenants that embody international
practices are adopted by consensus. This procedure, while giving
some legitimacy to the content of the instrument as evidence of
broad recognition, at times conceals the degree of unstated reservations
or dissent among regimes that do not voice their objections and
instead silently join the consensus in response to the pushes
and pulls of internal and external social and political[*36] pressures.
Accordingly, while it may be expedient for a state to refrain
from objecting to the international community's promulgation of
particular standards to govern relations among nations and their
subjects, its tacit acceptance does not always translate into
enactment of corresponding municipal law giving meaning and force
to the generalities articulated in the instruments with which
the state publicly associates itself.
a gap sometimes exists between the public concurrence the state
professes abroad to norms of international conduct in their relations
with the community of nations and the measures it actually adopts
at home to enable its people to realize the benefits of those
universal rules. It is not uncommon in international practice
for states to pay lip-service homage to the promulgation of particular
international instruments, and even to ratify binding covenants,
but then delay or fail altogether to adopt the municipal implementing
legislation necessary to give the enunciated international rights
meaningful domestic legitimacy and create an effective national
means to vindicate them. n53
n53 See Louis Henkin, The
Age of Rights ix-x (1990) (noting that despite universal acceptance
of the concept of international human rights, that consensus "is
at best formal, nominal, perhaps even hypocritical, cynical,"
though still maintaining that even giving hypocrisy its due, it
is the idea of human rights, to which no state has offered a preferable
alternative, that has dominated the global community's debate
and gained international currency in recent decades).
much of the same reasons, adjudication of claims that assert violations
of customary international law and seek to vindicate universally
recognized rights often engenders conceptual anomalies between
the gravity of the offenses, the high promise conveyed in lofty
terms by universally recognized rights, and the limited scope
of available municipal remedies. Human rights offenses universally
held to contravene the law of nations occupy the low ground reserved
by civilized people to rank the most heinous of human behavior.
Typically these wrongs are correspondingly branded in language
employing the most profound opprobrium, fittingly portraying the
depths of depravity the conduct encompasses, the often countless
toll of human suffering the misdeeds inflict upon their victims,
and the consequential disruption of the domestic and international
order they produce. These expressions mark the high stakes enshrined
by universally outlawed practices such as genocide; slavery; torture;
summary execution; forced disappearance; war crimes and crimes
against humanity. n54
n54 See generally Restatement
of Foreign Relations, supra § 702; Blum & Steinhardt, supra
the horrid deeds these recognized atrocities proclaim, and the
ringing words and promises with which they are universally condemned
and renounced in solemn international instruments, lies a reality:
that extant municipal law may not be available or may lag behind
the need in providing adequate or readily accessible remedies
to redress universally recognized wrongs, and that not infrequently,
in the absence of any particular right of action specifically
defined and promulgated to fit the real wrongs at hand, such means
of relief as may exist are achieved only by Procrustean analogies
that do not always capture or do justice to the actual grievousness
associated with the offenses. Thus, for example, under municipal
law of some jurisdictions, the magnitude of genocide and murder
by torture and extrajudicial killing may have to be adjudged and
remedied in accordance with ordinary civil tort standards prescribed
in wrongful death statutes. Wholesale degradations and deprivations
of all traces of human dignity perpetrated by cruel, inhuman or
degrading treatment may be civilly prosecuted under local principles
defining assault and battery or infliction of emotional distress.
Forced[*39] disappearance and prolonged arbitrary detention may
be classified as false imprisonment. n55
n55 See, e.g., Xuncax, 886 F. Supp. at 183, 200; Filartiga
II, 577 F. Supp. at 865-66; Mehinovic v. Vuckovic, 198
F. Supp. 2d 1322, 1357 (N.D. Ga. 2002).
sure, some aspects of international offenses may share elements
with the ordinary municipal law torts. But, in practice, the acute
form of misconduct entailed in international violations in many
cases amounts to more than mere differences in degree, and assumes
differences in kind so fundamental as to compel distinct treatment
under universally recognized rules. The "enemy of all humankind",
in legal if not in genetic terms, often ranks as a different species
from the ordinary tortfeasor of the typical case. n56 Equally
so is the class of universal rules that outcast the international
outlaw, and thus declare him unworthy of all sovereign protections,
distinguished from the global community's exhortations of aspirational[*40]
norms or even from customary international law. n57
n56 See Filartiga I, 630 F.2d at 890 ("For
the purposes of civil liability, the torturer has become like
the pirate and slave trader before him hostis humani generis,
an enemy of all mankind.").
n57 See Siderman de Blake v. Republic of Argentina,
965 F.2d 699, 715-16 (9th Cir. 1992) (describing the distinction
under international law principles between peremptory norms (jus
cogens), the obligations of which are binding on all states and
from which there can be no derogation, and customary international
law that derives from the consent of states).
difficulties, as evidenced by the courts that have addressed the
issues, arise not merely as a question of semantics that demean
the international standards. Rather, the greater concern lies
in potential results that could frustrate efforts to fashion relief
commensurate with the real repugnance of international wrongs
and their profound effects, in other words, remedies [*41]that
do not vindicate and recompense the victims of state-sponsored
genocide and murder as if they had suffered nothing more than
common law defamation and battery. n58
n58 See Mehinovic, 198 F. Supp. 2d at 1359
(recognizing that under international law, compensation for a
broad range of physical, emotional and social harms should be
commensurate to the injury) (citing M. Whiteman, Damages in International
Law 718-19 (1943)).
for example, involved what Judge Edwards characterized as a "barbaric
rampage" in which terrorists took 121 civilians hostage and
"tortured them, shot them, wounded them and murdered them,"
killing 22 adults and 12 children and seriously wounding 73 adults
and 14 children, before police managed to stop the "massacre."
n59 Although the dismissal of the case was sustained on substantive
grounds, the district court had ruled alternatively that the action
was also barred by the local one-year statute of limitations applicable
to certain torts, such as assault[*42] and battery. n60
n59 726 F.2d at 776
(Edwards, J., concurring).
n60 See 726 F.2d at 799 n.2 (citing Tel-Oren
v. Libyan Arab Republic, 517 F. Supp. 542, 550-51 (D.D.C. 1981);
cf. Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes against Humanity, G.A. Res. 2391 (XXIII),
23 U.N. GAOR Supp. (No. 18), at 40, U.N. Doc. A/7218 (1968) Art.
1, reprinted in International Instruments, supra, Vol. I, Pt.
2 at 679 (declaring that no statutory limitation shall apply to
bar the prosecution of war crimes and crimes against humanity
irrespective of the date of their commission).
the same reasons, other courts, in order to reflect the true magnitude
of the universally recognized wrongs at issue and confer relief
proportionate to the harms engendered, have felt compelled to
pick and choose from among available remedial options one that
advances the purposes of the ATCA and international law, in doing
so sometimes ignoring constraints[*43] of municipal law to fashion
relief even when the foreign law did not specifically recognize
a remedy. The underlying decisional rules at issue in these cases
have involved, for example, survival of a cause of action after
defendant's death; n61 the right of a sibling of the victim to
bring an action under the ATCA; n62 the applicable statute of
limitations; n63 and punitive damages. n64
n61 See, e.g., Marcos II,
25 F.3d at 1476.
n62 See, e.g., Xuncax, 886 F. Supp. at 191-92.
n63 See, e.g., Forti I, 672 F. Supp. at 1547-48; see
also Tel-Oren, 726
F.2d at 799 n.2 (Bork, J., concurring) (noting that the district
court had dismissed the case on the alternate ground that it was
barred by the forum's statute of limitations for certain torts).
n64 See, e.g., Filartiga II, 577 F. Supp. at 865-66;
but see Xuncax, 886
F. Supp. at 198, 201 (awarding punitive damages in connection
with ATCA claims but denying them as regards municipal law claims
on account of doubt as to whether recovery of such damages was
permissible under the municipal law of Guatemala).
drawback to a choice of law approach mandating strict adherence
to municipal law in redressing international law violations in
ATCA cases is the practical and jurisprudential complexities that
inhere in discerning, construing and enforcing substantive rules
of decision formulated by foreign courts, legislatives or administrative
bodies. n65 The intricacies and challenges are compounded in ATCA
adjudications by the integral links and interplay that exist between
the application municipal and international law for both jurisdictional
and decisional purposes. Though the Federal Rules of Civil procedures
provide guidance for federal courts in applying foreign law, n66
this authority does not mitigate the conceptual and pragmatic
obstacles always associated with in the task.
n65 See Xuncax, 886 F. Supp. at 183; see also
Tel-Oren, 726 F.2d at 787 (Edwards, J., concurring).
n66 See Fed. R. Civ. P. 44.1.
B. EMERGENCE OF FEDERAL COMMON LAW POST-FILARTIGA
synthesis, the foregoing case law reflects the emergence of a
set of decisional rules federal courts have crafted to give scope
and content to the cause of action the ATCA creates as it relates
to international human rights law. Under these principles, as
regards to misconduct that violates universally recognized norms
of international law, the cases suggest several standards to guide
ATCA choice of law determinations: (1) the local law of the state
where the wrongs and injuries occurred and the parties reside
may be relevant and may apply to resolve a particular issue insofar
as it is substantively consistent with federal common law principles
and international law and provides a remedy compatible with the
purposes of the ATCA and pertinent international norms; n67 (2)
in the event the local law of the foreign state of the parties'
residence and underlying events conflicts with federal or international
law, or does not provide an appropriate remedy, or is otherwise
inadequate to redress the international law violations in question,
a remedy may be fashioned from analogous principles derived from
federal law and the forum state, or from international law embodied
in federal common[*46] law; n68 (3) should the application of
law from federal and forum state principles as to some aspect
of the claim defeat recovery, an analogous rule drawn from the
municipal law of the foreign jurisdiction may be applied to the
extent it supplies a basis for a decisional rule that may permit
relief; n69 (4) if some part of the claim cannot be sustained
as a violation of international law, a remedy might be found by
application of the foreign state's municipal law under the federal
court's pendent jurisdiction if so invoked. n70
n67 See Filartiga II, 577 F. Supp. at 863.
n68 See id.; Unocal, 2002 U.S. App. LEXIS 19263, 2002
WL 31063976, at *11; Abebe-Jira v. Newego, 72 F.3d 844,
848 (11th Cir. 1996); Marcos II, 25 F.3d at 1476; Xuncax
886 F. Supp. at 189-91; Forti I, 672 F. Supp. at 1547-48.
n69 See Xuncax, 886 F. Supp. at 191-92.
n70 See id. at 194-97.
In essence, what these precedents represent[*47]
is the natural evolution of common law, and the organic branching
of federal substantive rules through the ATCA, which "established
a federal forum where courts may fashion domestic common law remedies
to give effect to violations of customary international law."
n71 This growth of federal decisional law gives expression to
the longstanding principle that the law of nations has always
been part of federal law. n72
n71 Abebe-Jira, 72 F.3d
at 848 (citing Kadic v. Karadzic, 70 F.3d 232, 246 (2d
Cir. 1996); Filartiga I, 630 F.2d at 887; Xuncax,
886 F. Supp. at 179-183) see also Filartiga II, 577 F. Supp. at 863.
n72 See Filartiga II, 630 F.2d at 885-86 (citing
The Nereide, 13 U.S. (9 Cranch) 388, 422, 3 L.E2d 769 (1815);
The Paguete Habana, 175 U.S. at 700); see also Kadic, 70 F.3d at 246; Wiwa, 226 F.3d 104-05.
body of federal law develops under this[*48] approach, so as to
give content to an ATCA right of action and thus fill in the interstices
with federal decisional rules, the federal courts' response acquires
the virtues of uniformity and recognition of more diverse sources
of substantive standards to draw upon in shaping remedies for
adjudication of ATCA claims. The advantages of this approach were
noted by the Xuncax court's observation that: "by not tethering
[the ATCA] to causes of action and remedies previously developed
under roughly analogous municipal law, federal courts will be
better able to develop a uniform federal common law response to
international law violations, a result consistent with the statute's
intent in conferring federal court jurisdiction over such actions
in the first place." n73
n73 886 F. Supp. at 182.
(citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
427 n.25, 11 L. Ed. 2d 804, 84 S. Ct. 923 (1964)).
a recent Second Circuit explication of Filartiga I is consistent
with[*49] a reading that in appropriate cases would permit a choice
of law determination not necessarily compelling dispositive application
of foreign law where the municipal rule of decision may conflict
with federal law or international standards. In Wiwa, the Circuit
Court noted that under the choice of law analysis required by
Filartiga I, the district court would determine whether international
law, the law of the forum, or the law of the state where the events
occurred should provide the substantive law to adjudicate the
n74 226 F.3d at 105 n.
acknowledges significant developments in the progression of international
human rights law since Filartiga I was decided that affect the
application of the doctrine enunciated by that case. Most significant
of these advances was the enactment of the TVPA in 1991, which
the Wiwa court construed as both ratifying the holding in Filartiga
I and significantly carrying it further. n75 The court noted that
the TVPA not[*50] only grants federal jurisdiction, but makes
it clear that it creates liability under United States law for
torture and extrajudicial killing, and extends its remedy not
just to aliens but to any individual. n76 "The TVPA thus
recognizes what was perhaps implicit in [the ATCA] -- that the
law of nations is incorporated into the law of the United States
and that a violation of international law of human rights is (at
least with regard to torture) ipso facto a violation of U.S. domestic
n75 See id. at 104.
n76 See 226 F.3d at 104-05.
n77 Id. (citing H.R. Rep.
No. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86)).
in all of these developments is that whatever virtue the Lauritzen
choice of law analysis may have in the context of a maritime case,
the evolution of international human rights law in the light of
contemporary realities as reflected in the Second Circuit's recognition
of these developments, points to the necessity of[*51] staking
out a more flexible course in the determination of the substantive
law to be applied in adjudicating ATCA cases. Against this more
ample exposition of the considerations that guide its decision,
the Court proceeds to conduct its choice of law inquiry as it
pertains to Plaintiffs' ATCA claims.
C. CHOICE OF LAW ANALYSIS AND APPLICATION OF THE
PERTINENT RULES OF DECISION
examined the pertinent provisions of the Zimbabwe Constitution
and relevant legal doctrine called to the Court's attention in
Plaintiff's submission, n78 the Court is persuaded that this authority,
though not explicitly creating defined causes of action as to
all claims, sufficiently proscribes wrongful conduct and protects
substantive rights encompassing Plaintiffs' claims asserting (1)
torture and extrajudicial killing, (2) cruel, inhuman or degrading
treatment, (3) denial of political rights, and (4) systematic
racial discrimination. The Court is not persuaded that a sufficient
basis for recovery exists under international law for Plaintiffs'
claims asserting uncompensated seizure of their property. However,
Plaintiffs have also sufficiently established legitimate grounds
for recovery on their[*52] expropriation claims under Zimbabwe
n78 See Fed. R. Civ. P. 44
(In determining the content and meaning of the laws of a foreign
country, a court may examine and consider "any relevant material
or source, including testimony, whether or not submitted by a
party or admissible under the Federal Rules of Evidences");
see also Overseas
Dev. Disc. Corp. v. Sangano Constr. Co., 840 F.2d 1319, 1324 (7th
and Extrajudicial Killing
Claims One and Two, Plaintiffs seek monetary relief under the
TVPA and ATCA to redress the torture and extrajudicial killing
of Metthew Pfebve, David Stevens and Tafuma Chiminya Tachiona.
The Magistrate Judge found that these individuals had been subjected
by an organized mob of ZANU-PF members to severe pain and suffering
by means of torture before being brutally murdered. n79 Specifically,
the Magistrate Judge found as follows: n80
n79 See Tachiona, 216 F. Supp. 2d at 275.
n80 See id. at 270-74 (internal citations omitted).
Chiminya Tachiona was a founding member of the [Movement for Democratic
Change "MDC"], the National Youth Organizer for the
MDC, and a close companion of Morgan Tsvangirai, the President
of the MDC. On April 15, 2000, whole Mr. Chiminya was campaigning
with Mr. Tsvangirai, a group of ZANU-PF supporters attacked them.
Managing to escape, Mr. Chiminya drove injured colleagues to the
hospital, after which he reported the incident to the police.
On his way home from the police station, he and two other MDC
supporters, Sanderson Makombe and Talent Mabika, were again stopped
by ZANU-PF members, who began attacking them with knives and sticks.
Mr. Makombe was able to escape through the window of the vehicle
and hid in the nearby brush, but Mr. Chiminya and Ms. Mabika remained
trapped inside the truck as the assailants continued to beat them.
Mr. Chiminya was hit repeatedly in the head with the butt of a
gun, according to Mr. Makombe. At that point, the assailants doused
the vehicle with gas, [*54] causing the whole truck to go up in
flames. The attackers then jumped in their vehicle and fled, soon
after which Mr. Chiminya and Ms. Mabika managed to tumble out
of the burning truck. Mr. Chiminya "was just like a ball
of flames running across the tarred road," according to Mr.
Makombe. He ran toward a field and collapsed, but died before
Mr. Makombe could reach him.
Stevens and his wife, Maria, owned a private commercial farm in
Zimbabwe. Mr. Stevens was a known supporter of the MDC. On February
12, 2000, their farm was invaded by twenty-six ZANU-PF and ZWVA
members and supporters. After that initial invasion, there have
been a number of incidents of violence. For example, on two occasions,
several female farm workers were assaulted and on one occasion,
one was raped. Complaints to the police went unheeded ... On April
15, 2000, ZANU-PF and ZWVA members killed the Stevens' dog and
abducted David Stevens and five others. All six were severely
beaten and tortured, and Mr. Stevens was forced to drink diesel
of Mr. Stevens' neighbors observed the kidnapping and attempted
to come to his aid by following his abductors to the police station.
[*55] Once there, they were taken hostage as well, bound with
rope, and driven away in two different vehicles. The men were
tortured in a variety of ways, including being burned with cigarettes;
beaten on the soles of their feet; beaten with rods, rocks and
iron bars; hit in the face; and whipped with a fan belt from a
car. In addition, their legs were cut with knives and they were
threatened with having their ears and testicles cut off. Mr. Stevens
was summarily executed later that same day.
29, 2000, ZANU-PF supporters approached the Pfebve home wielding
axes, spears, sticks, and stones. The Pfebve family ran in different
directions. Metthew Pfebve's mother managed to run into the outhouse,
but was eventually found and pelted with stones by the assailants.
The plaintiff and his father were attacked with stones, sticks
and fists, then dragged down the road. The plaintiff's father
was eventually dropped unconscious on the road, suffering deep
lacerations to his head and several broken fingers. Meanwhile,
Metthew Pfebve was carried away by the assailants. He was found
dead the next day, naked and lying in the middle of the road,
approximately one and one-half[*56] kilometers from his home.
He had been severely beaten. The plaintiffs allege that he was
in all likelihood tortured prior to his death at or nearby a primary
school which the defendant had turned into a torture camp.
Plaintiffs' rights asserted in Claims One and Two, the Magistrate
Judge recommended recovery of compensatory and punitive damages
against ZANU-PF under both the TVPA and the ATCA. In Tachiona
III, the Court adopted the Report's recommendation of damages
with regard to Plaintiffs' claims of torture and extrajudicial
killing under the TVPA. n81
n81 See id. at 267-68.
Plaintiffs' Claims One and Two under the ATCA, the Court notes
that the Zimbabwe Constitution contains provisions that explicitly
prohibit both torture and extrajudicial killing. Article 12(1)
states that "No person shall be deprived of his life intentionally
save in execution of the sentence of a court in respect of a criminal
offense of which he has been convicted." n82 Similarly, Article[*57]
15(1) declares in relevant part, with elaborations and exceptions
not pertinent here, that: "No person shall be subjected to
torture[.]" n83 To vindicate rights protected by these provisions,
the Zimbabwe legal system establishes civil remedies for victims
of certain unlawful deprivations of an individual's rights to
life, person or property, as well as for infringements of dignity,
reputation or liberty, committed by intentional conduct, including
assault, extrajudicial killing and murder. n84 These remedies
enable claimants to recover both compensatory and punitive damages
from the wrongdoers. The Court finds this authority sufficient
to sustain the Magistrate Judge's recommendation of awards under
ATCA of compensatory and punitive damages on Plaintiffs' claims
of torture and extrajudicial killing.
n82 Zimbabwe Const. Art. 12(1).
The Zimbabwe Constitution was submitted as Attachment C of Affidavit
of Kevin Laue, dated 27 September 2002 ("Laue Aff."),
attached to Plaintiff's Memorandum of Law Addressing Choice of
Law Analysis Applicable to their claims for Relief Under the Alien
Tort Claims Act, dated October 7, 2002.
n83 Id. at Art. 15(1).
n84 See Laue Aff., PP 11, 12 and 13.
point out that their claims for torture and extrajudicial killing
were filed under both the ATCA and the TVPA. They therefore urge
that in addition or alternatively the Court consider the damages
Plaintiffs are entitled to recover under the TVPA as undifferentiated
damages awarded under the ATCA as well. The Court agrees.
the TVPA to effectuate this country's commitments under the Torture
Convention, Congress gave express definition to causes of action
arising under United States law specifying substantive rights
and protections of individuals to be free from state-sponsored
torture and extrajudicial killing. n85 The Second Circuit has
construed this Congressional mandate as embodying recognition
that these actions, when committed by foreign states under color
of law in violation of international law, "is 'our business,'
as such conduct not only violates the standards of international
law but also as a consequence violates our domestic law."
n86 The Circuit Court thus not only gave expression to Congressional[*59]
intent favoring the adjudication of TVPA claims in federal courts
as a matter of United States policy, but also implicitly recognized
that in considering the substantive law governing a cause of action
invoking the TVPA the courts may apply federal law rights embodied
in the TVPA's definitions of torture and extrajudicial killing
to adjudicate the dispute.
n85 See 28 U.S.C. § 1350
(statutory note); Wiwa, 226 F.3d at 104-05; Kadic, 70
F.3d at 245-46.
n86 Wiwa, 226 F.3d at 106.
practical effect of this approach is to obviate the need, in connection
with torture and extrajudicial killing claims asserted under the
TVPA and the ATCA, to conduct and adhere to a strict choice of
law analysis in accordance with Filartiga I, and to offer the
courts the ability to apply substantive rights defined by federal
law in cases where the law of the foreign state in question may
be ambiguous, silent or even incompatible. To this effect, the
[*60]Second Circuit noted in Kadic that: "the [TVPA] permits
[claimants] to pursue their claims of official torture under the
jurisdiction conferred by the [ATCA] and also under the general
federal question jurisdiction of [28 U.S.C.] section 1331 ...."
n87 70 F.3d at 246 (citing Xuncax, 886 F. Supp. at 178).
the Court adopts the Report's recommendation that Plaintiffs be
awarded compensatory and punitive damages on their Claims One
and Two for torture and extrajudicial killing under the TVPA and
of Political Rights
Claims Three and Four under the ATCA assert violations of certain
political freedoms: denials of the rights of association, assembly,
expression and beliefs and of the right to run for political office
and participate in the state's government. The Magistrate Judge
recommended awards of compensatory and punitive damages with respect
to these claims, finding that ZANU-PF systematically hounded its
political[*61] opponents through repeated acts of terror and violence.
According to the Magistrate Judge, ZANU-PF specifically targeted
Plaintiffs' association with the Movement for Democratic Change
("MDC"), an opposition political party:
MDC supporters were constantly harassed, peaceful
assemblies were interrupted by mobs of ZANU-PF supporters attacking
MDC supporters, assassination attempts were made on MDC candidates,
and MDC supporters were killed. n88
n88 Tachiona III, 216 F.
Supp. 2d at 280-81.
freedoms of political association, speech, beliefs and participation
that Plaintiffs assert are recognized in various international
instruments. The Universal Declaration contains several provisions
itemizing individual rights that go to the essence of a person's
political expression and participation, including freedoms of
thought and conscience; of opinion and expression; of peaceful
assembly and association; and of participation in the government
of the person's country. n89 Corresponding provisions[*62] are
more particularized in the Civil and Political Rights Covenant.
n89 See Universal Declaration,
supra, Arts. 2, 7, 18, 19, 20, 21, reprinted in International
Instruments, supra, Vol. I, Pt. 1, at 2-5. These provisions declare
in pertinent part:
Everyone is entitled to all
the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status ...
All are equal before the law
and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against any incitement
to such discrimination.
Everyone has the right to
freedom of thought, conscience and religion ...;
Everyone has the right to
freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless
(1) Everyone has the right
to freedom of peaceful assembly and association;
(1) Everyone has the right
to take part in the government of his country, directly or through
freely chosen representatives.
n90 See Political and Civil
Rights Covenant, supra, Arts. 18, 19, 20, 21, 22, 25 and 26, reprinted
in International Instruments, supra, Vol. I, Pt. 1, at 27-30.
The related provisions of the Covenant state in relevant part:
1. Everyone shall have the
right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief
of his choice, and freedom, either individually or in community
with others and in public or private, to manifest his religion
or belief in worship, observance, practice and teaching.
2. No one shall be subject
to coercion which would impair his freedom to have or to adopt
a religion or belief of his choice.
3. Freedom to manifest one's
religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedoms
1. Everyone shall have the
right to hold opinions without interference.
2. Everyone shall have the
right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his choice.
3. The exercise of the rights
provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by
law and are necessary:
(a) For respect of the rights
or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
2. Any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.
The right of peaceful assembly
shall be recognized. No restrictions may be placed on the exercise
of this right other than those imposed in conformity with the
law and which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of
the rights and freedoms of others.
1. Everyone shall have the
right to freedom of association with others ...
2. No restrictions may be
placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society
in the interests of national security or public safety, public
order (ordre public), the protection of public health or morals
or the protection of the rights and freedoms of others.
Every citizen shall have the
right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:
(a) To take part in the conduct
of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected
at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c) To have access, on general
terms of equality, to public service in his country.
All persons are equal before
the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
See also American Convention,
supra, Arts. 12, 13, 15, 16, 23, 24, reprinted in International
Instruments, supra, Vol. II at 9, 20, 22; African Charter, supra,
Arts. 8, 9, 10, 11, 13, reprinted in International Instruments,
supra, Vol. II at 333-34; European Convention, supra, Arts. 9,
10, 11, 14 reprinted in International Instruments, supra Vol.
II at 77-78.
of these sources, or other authorities elaborating on the scope,
content and practical application of these rights, offers a particular
definition or explicit guidance as to whether and to what extent
universal consensus exists concerning the kinds of deprivations
of political rights that are cognizable as violations of customary
international law. However, the Second Circuit has recognized
the significance of the Universal Declaration in "specifying
with great precision the obligations of member nations under the
[United Nations] Charter." n91 In this regard, the Filartiga
I Court acknowledged scholarly opinion, which it cited favorably,
for the view that the Universal Declaration "no longer fits
into the dichotomy of 'binding treaty' against 'non-binding pronouncement,'
but is rather an authoritative statement of the international
community.'" n92 Consistent with this proposition, the Circuit
Court also noted that "several commentators have concluded
that the Universal Declaration has become, in toto, a part of
binding, customary international law." n93 Thus, the elemental
principles embodied in the Universal Declaration are not only
repeatedly invoked by the international[*65] community in general
pronouncements but have been adopted as part of the constitutions
of many states around the world and as such are reflected concretely
in applied organic law.
n91 Filartiga I, 630 F.2d
n92 Id. (quoting E. Schwelb,
Human Rights and the International Community 70 (1964)).
n93 Id. (citations omitted).
This opinion is supported as well by other commentators who have
urged that, taken as a whole, the Universal Declaration, as supplemented
and elaborated by other international human rights instruments
and practices of states, through constant invocation, widespread
acceptance and global recognition as an authoritative definition
and construction of the content of human rights, has acquired
the status of customary international law prohibiting the violation
of any of the rights enumerated in the Universal Declaration.
See Myers McDougal, Harold Lasswell and Lung-Chu Chen, Human Rights
and World Public Order 273-74, 325-27 (1980).
with greater specificity the content and degree of universality
accorded to the political rights at issue in the instant case,
the Court must note that the world is characterized by fundamental
diversity of political systems and established orthodoxies. A
vast range of political thought and channels of expression exists
around the globe. So, too, common tensions often prevail between
individual and aggregate rights, and majorities versus minorities,
on the one hand, and, on the other, the imperatives of maintaining
territorial integrity, national security and internal public order,
safety and health. Given these realities, the absence of a more
particularized expression defining the precise contours of individual
civil and political rights as customary international law is not
as sources of guidance for what qualifies as internationally recognized
norms relating to the political rights Plaintiffs invoke, the
Court may draw from general principles derived from international
agreements, declarations and pronouncements on the particular
subject, as well as from the general principles common to the
world community's major legal systems. n94 In this connection,
[*67] the Court considers relevant doctrine and expressions reflected
in the Restatement of Foreign Relations and federal law principles,
provisions of the Universal Declaration and the Civil and Political
Rights Covenant, and interpretations and applications of these
instruments by authoritative international and domestic bodies.
n94 See Filartiga I, 630 F.2d at 883; Restatement
of Foreign Relations, supra § 102.
Restatement of Foreign Relations
the absence of greater particularity and universal understanding
as to the civil and political rights encompassed within internationally
recognized and obligatory norms, § 702 of the Restatement of Foreign
Relations does not specifically enumerate denial of civil and
political rights among the distinct state policies or practices
that violate customary international human rights law. The Restatement
§ 702 lists as customary law the following violations of human
rights: (a) genocide, (b) slavery or slave trade, (c) the [*68]murder
or causing the disappearance of individuals, (d) torture or other
cruel, inhuman, or degrading treatment or punishment, (e) prolonged
arbitrary detention, (f) systematic racial discrimination, and
(g) a consistent pattern of gross violations of internationally
recognized human rights. The Restatement notes that the human
rights prohibitions enumerated in clauses (a) through (f) are
peremptory norms (jus cogens) and are not subject to derogation
in times of emergency. n95
n95 See Restatement of Foreign
Relations, supra § 702; id. cmt. n and Reporters' Note 11.
in § 702(g) the Restatement identifies a general category of international
human rights violations where, as a matter of policy, a state
practices, encourages or condones "a consistent pattern of
gross violations of internationally recognized human rights."
n96 Among consistent patterns deemed "gross," the Restatement
cites as examples: "systematic harassment, invasions of the
privacy of the home, arbitrary arrest and detention[*69] (even
if not prolonged); ... denial of freedom of conscience ...."
n96 Id. at § 702(g).
n97 Id. cmt. m; see also id.
Reporters' Note 10 (noting that "'consistent pattern of gross
violations' generally refers to violations of those rights that
are universally accepted and that no government would admit to
violating as state policy," including political and civil
rights such as those described above).
observations about § 702(g) are notable and pertinent to the instant
case. First, because each of the violations listed in clauses
(a) through (f) stands alone as having already acquired the requisite
universal acceptance and definition to qualify as customary international
law, the reference in clause (g) to "internationally recognized
human rights" must comprise a residual body of protections
and violations that, though articulated in global human rights
declarations and instruments, standing alone presumably may not
as yet have attained the authority of customary international
law[*70] when considered as isolated incidences, but may rise
to acquire such status when they satisfy the two specified standards:
being both part of a "consistent pattern" and "gross"
violations. In Kadic, the Second Circuit considered a somewhat
analogous situation. It ruled that certain atrocities involving
rape, torture and summary execution attributed personally to the
offender that ordinarily would require state action to qualify
as violations of international law were cognizable under the ATCA
without regard to state action insofar as they were committed
in furtherance of misconduct, such as genocide or war crimes,
that did constitute recognized jus cogens violations of international
law for which private individuals may be held liable even absent
state action. n98
n98 70 F.3d at 243-44;
accord Unocal, 2002
U.S. App. LEXIS 19263, 2002 WL 31063976, at *9.
reading and application would also be consistent with analogous
federal law principles which hold that wrongful conduct by federal
or municipal[*71] government officials is not actionable as violating
certain constitutional prohibitions unless the underlying actions
constitute a custom, policy or practice or, in the case of other
constitutional standards, demonstrates conduct sufficiently gross
to comprise reckless disregard or deliberate indifference for
human life. n99
n99 See Farmer v. Brennan,
511 U.S. 825, 836, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994);
Monell v. Dep't Soc. Servs., 436 U.S. 658, 690-91, 56 L. Ed.
2d 611, 98 S. Ct. 2018 (1978); Bivens v. Six Unknown Agents
of Fed. Bur. of Narcotics, 403 U.S. 388, 393, 29 L. Ed. 2d 619,
91 S. Ct. 1999 (1971) ("An agent acting -- albeit unconstitutionally
-- in the name of the United States possesses far greater capacity
for harm than an individual trespasser exercising no authority
other than his own."); see also
Unocal, 2002 U.S. App. LEXIS 19263, 2002 WL 31063976,
at *34 (Reinhardt, J., concurring).
an interpretation of clause (g) that would define the[*72] violations
it encompasses by reverting back to those already enumerated in
clauses (a) through (f) would be tautological and render clause
(g) meaningless. Third, the underlying concept of clause (g) is
consistent with that of clause (f). Racial discrimination as such
is universally denounced as incompatible with international norms.
n100 But under § 702(f) racial discrimination, when practiced,
encouraged or condoned by the state, violates international human
rights law only when it is "systematic". n101
n100 See, e.g., Universal
Declaration, supra, Arts. 2, 7, reprinted in International Instruments,
supra, Vol. I, Pt. 1, at 2-3; Convention on Racial Discrimination,
supra, Arts. 1-8. reprinted in International Instruments, supra,
Vol. I, Pt. 1, at 66-71.
n101 Restatement of Foreign
Relations, supra § 702(g).
of a concept similar to that embodied in Restatement § 702(g),
articulating international concern and condemnation of "gross
and systematic" violations of fundamental[*73] human rights,
are reflected in various international pronouncements. n102 As
it pertains specifically to certain political rights, this principle
is affirmed in the Proclamation of Teheran, n103 which declares
that: "Gross denials of human rights arising from discrimination
on grounds of race, religion, belief or expressions of opinion
outrage the conscience of mankind and endanger the foundations
of freedom, justice and peace in the world."
n102 See e.g., Vienna Declaration
and Programme of Action (the "Vienna Declaration"),
P 80, U.N. Doc. A/CONF. 157/23 (1993) (expressing condemnation
of various "gross and systematic violations and situations
that constitute serious obstacles to the full enjoyment of all
human rights ..."); Beijing Declaration and Platform for
Action (the "Beijing Declaration"), ch. IV.E. PP 114,
131, U.N. Doc. A/CONF. 177/20 (1995) (same, and specifically referencing
"systematic rape"). The Vienna Declaration was adopted
by the World Conference on Human Rights on June 25, 1993. See
Vienna Declaration, supra, Note by the Secretariat. The Beijing
Declaration was adopted by the Fourth World Conference on Women
on September 15, 1995. See Beijing Declaration, supra, Resolution
n103 See Proclamation of Teheran,
Final Act of the International Conference on Human Rights (the
"Proclamation of Teheran"), P 11, U.N. Doc. A/CONF.
32/41 at 3 (1968), reprinted in International Instruments, supra,
Vol. I, Pt. 1, at 51-54. The Proclamation of Teheran was adopted
by the International Conference on Human Rights at Teheran on
May 13, 1968. See International Instruments, supra, Vol. I, Pt.
1, at 51.
Civil and Political Rights Covenant
Civil and Political Rights Covenant does offer greater specific
definition and guidance with regard to the freedoms here in question.
It makes clear that even if perhaps not all of the civil and political
rights enunciated in the Universal Declaration may garner global
recognition satisfying the requisite standards of universality
and specificity, and thus qualify as customary international law,
not all of the proclaimed rights necessarily stand on the same
footing. In fact, the Covenant itself manifests that some universal
human rights already have attained sufficient definition and recognition
among the individual freedoms[*75] that are entitled to protection
as peremptory norms. The listing includes proscriptions concerning:
the right to life (Art. 6); freedom from torture (Art. 7) and
slavery (Art. 8); imprisonment for debt (Art. 11); criminal convictions
under ex post facto laws (Art. 15); and the right to recognition
as a legal person (Art. 16). n104 Article 4(2) specifically enumerates
the right to freedom of thought, conscience and religion enunciated
in Article 18 among the provisions of the Covenant that are not
subject to derogation in time of public emergency, and is thus
accorded special rank among those standards that have acquired
firm standing as customary international law. n105
n104 See International Instruments,
supra, Vol. I, Pt. 1 at 22, 23, 25, 27; see also Restatement of
Foreign Relations, supra § 702, cmt. n.
n105 See International Instruments,
supra, Vol. I, Pt. 1 at 22.
Article 18(3) of the Covenant articulates specific standards clearly
defining the scope of freedom of thought, [*76] conscience and
religion and the circumstances under which interference with exercise
of these rights may be permissible. In particular, no restraints
are allowed on these freedoms as such; Article 18(3) of the Covenant
recognizes limitations only on a person's freedom to manifest
his religion or beliefs, and then only insofar as such restrictions
"are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and
freedoms of others." n106
n106 Id. at 27; see also Karl
Josef Partsch, Freedom of Conscience and Expression, and Political
Freedoms, published in The International Bill of Rights, supra
similar framework defining the bounds of restraints on exercise
of the right to freedom of opinion and expression is contained
in Article 19. First, Article 19(1) recognizes the right of every
person to hold opinions without interference. The right is expressed
in absolute terms, with no permitted infringements. Freedom of
expression, on[*77] the other hand, is made subject to specific
limitations, but only as provided by law and necessary (a) for
respect of the reputations or rights of others, or (b) for the
protection of national security, or of public order, or of public
health or morals. n107
n107 See International Instruments,
supra, Vol. I, Pt. 1, at 28. Article 19(3)(a) and (b) add respect
for the reputations of others and protection of national security
to the grounds permitting limitations on freedom of expression.
These concerns are not mentioned in Article 18(3) as regards freedom
of thought, conscience and religion. See id. at 27-28.
freedoms of thought, conscience and religion, and the related
freedoms of opinion and expression, n108 may be regarded as ordered
on a higher plane on the scale of universal acceptance and definition,
and thus vested with a higher grade of protection, than associational
and participatory rights such as freedom of association, assembly
and political participation in government, each of[*78] which
is subject to many more practical constraints associated with
other public imperatives. n109
n108 By placing freedom of
thought and freedom of opinion in separate Articles, the Covenant
seems to imply a distinction between them. Any difference is tenuous.
For, "thought" may include not only religious belief
but social and political conceptualization as well. See The International
Bill of Rights, supra at 214. One commentator endeavored to describe
the nuances as follows: "There are no clear frontiers between
'thought', and 'opinion'; both are internal. 'Thought' is a process,
while 'opinion' is the result of this process. 'Thought' may be
nearer to religion' or other beliefs, 'opinion' nearer to political
convictions. 'Thought' may be used in connection with faith or
creed, 'opinion' for convictions in secular and civil matters."
Id. at 217.
n109 As regards the rights
of peaceful assembly, of association with others, and of participation
in political affairs, Articles 21, 22 and 25 of the Covenant elaborate
other qualifications that clearly manifest the hierarchy of the
arrangement among these various civil and political rights. See
International Instruments, supra, Vol. I, Pt. 1, at 28-20. As
in Articles 18 and 19, limitations are placed by Articles 21 and
22 on exercise of the rights of peaceful assembly and association;
any interference is subject to the condition that the restriction
be "necessary" in connection with the specified public
purposes. Articles 18 and 19, however, require that any limitation
on freedom to manifest beliefs or religion, as well as exercise
freedom of expression, must be necessary to "protect"
public safety, order, health or morals. Id. at 27-28. Articles
21 and 22, on the other hand, provide that the interference must
be necessary "in a democratic society" and "in
the interests" of national security or public safety or public
order. Moreover, Article 21 differs in that restrictions are permitted
if "imposed in conformity with law," as opposed to the
apparently stricter standard of "prescribed" or "provided"
by law that is employed in other formulations of the limitation.
Id. at 28. These modifications would have the effect of rendering
the recognition of freedoms associated with manifestation of beliefs
and expression more rigorous as well as more broadly based.
By way of further contrast evidencing the distinctions and priorities
built into the Covenant's hierarchical order, the rights of participation
in political affairs set forth in Article 25 are not subject to
the strict standards reflected in the "prescribed" or
"provided" by law and "necessary" formulations
that apply to the rights contained in Articles 18, 19, 21 and
22. Rather, these participatory rights are qualified by a far
more ample and flexible condition that any restriction on them
not be "unreasonable." Id. at 29-30.
point, the Preamble of the Universal Declaration itself eloquently
affirms that "the advent of a world in which human beings
shall enjoy freedom of speech and belief and freedom from fear
and want has been proclaimed as the highest aspiration of the
common people." n110 For, internal intrusions into the workings
of the mind in formulating thought and opinion, and on their manifestations
as beliefs and legitimate expression, may be inherently more invasive
and perverse, and thus may be more fundamentally harmful to the
individual and society, than some external restraints affecting
an individual's associational and participatory political rights.
n111 The Restatement of Foreign Relations also implicitly acknowledges
the special significance of the person's mental freedoms in its
specific mention of denial of freedom of conscience among its
illustrations of the violations of internationally recognized
human rights that would fall within the proscription of § 702.
n110 International Instruments, supra, Vol. I, Pt. 1 at 1.
n111 See Civil and Political
Rights Covenant, supra, Arts. 19, 21, 22, 25 International Instruments,
supra, Vol. I, Pt. 1 at 28-30 (categorically delineating a "right
to hold opinions without interference" while providing for
"reasonable" and "necessary" restrictions
on rights to freedom of peaceful assembly, association and public
governance and election; see also International Bill of Rights,
supra at 217 ("The right to hold opinions may be seen as
a special aspect of the right of privacy dealt with in Article
17 [of the Covenant], but there only arbitrary and unlawful interferences
are prohibited; the privacy of thought and opinion is subject
to no interference whatever.").
n112 See Restatement of Foreign
Relations, supra § 702, cmt. m.
recognition of the unique value, and the priority among human
rights norms, vested by the Civil and Political Rights Covenant
in freedom of conscience, thought, opinion and expression is also
conveyed in other authoritative sources and scholarly views. The
Supreme Court has described freedom of opinion and expression
as "the matrix, the indispensable condition of nearly every
other form of freedom." n113 These freedoms have also been
characterized as "the 'touchstone of all the freedoms to
which the United Nations is consecrated.'" n114
n113 Palko v. Connecticut,
302 U.S. 319, 327, 82 L. Ed. 288, 58 S. Ct. 149 (1937).
n114 McDougal, Lasswell and
Chen, supra at 700-01 (quoting Annotations on the Text of the
Draft International Covenants on Human Rights, 10 U.N. GAOR, Annexes
(Agenda Item No. 28) at 50, U.N. Doc A/2929 (1955)). See also
The International Bill of Rights, supra at 216 ("It is an
old commonplace that freedom of opinion and expression is one
of the cornerstones of human rights and has great importance for
all other rights and freedoms.").
2 of the Universal Declaration embodies this recognition by placing
enjoyment of rights and freedoms without discrimination based
on "political or other opinions" on par with other impermissible
distinctions, such as race, color, sex, language, religion and
national or social origin. n115 This provision is reinforced by
the affirmative prescriptions set forth in Article 7, which recognize
every person's right to equal protection of the law against any
form of discrimination or incitement to discrimination, and in
Article 19, which specifically enunciates the "right to freedom
of opinion and expression," including "freedom to hold
opinions without interference ...." n116
n115 See International Instruments,
supra, Vol. I, Pt. 1 at 2.
n116 Universal Declaration,
supra, Art. 19, reprinted in International Instruments, supra,
Vol. 1, Pt. 1, at 4; see also Civil and Political Rights Covenant,
supra, Arts. 2(1), 26, reprinted in International Instruments,
supra, Vol. I, Pt. 1, at 21, 26; African Charter, supra, Art.
2, reprinted in International Instruments, supra, Vol. II at 331;
American Convention, supra, Art. 13, reprinted in International
Instruments, supra, Vol. II at 19; European Convention, supra,
Art. 14, reprinted in International Instruments, supra, Vol. II
at 78; Proclamation of Teheran, supra P 5, reprinted in International
Instruments, supra, Vol. I, Pt. 1 at 52.
longstanding, consistent, widely recognized expressions uniformly
convey a basic principle that "the differential treatment
of individual human beings entirely on the basis of political
and other opinions is clearly incompatible with the values of
human dignity." n117 Beyond its political and moral grounding,
this precept also possesses other utilitarian value insofar as
"abundant production and wide sharing of all values are profoundly
affected by the degree to which the members of a community enjoy
freedom of opinion." n118
n117 McDougal, Lasswell and
Chen, supra at 697.
n118 Id. at 697-98.
by Courts and Other Adjudicatory Bodies
level of the recognition and definition accorded to the rights
to freedom of thought and beliefs and of opinion and expression
as binding international norms is reflected in official interpretations
and applications of the relevant provisions of the Civil and Political
Rights Covenant by various international courts and adjudicatory
bodies. [*83] These authorities uniformly reaffirm three essential
principles that define and embody the specific content of these
rights: (1) that the right to enjoy and exercise these freedoms
is a fundamental and obligatory international norm; (2) that any
interference with the exercise of these rights may be justified
only (a) when provided by law, (b) when the restraint is necessary
to protect essential rights of others or to further vital public
purposes grounded on national security, public order, safety,
health or morals, and (c) when the interference is proportionate
to the legitimate aims pursued; and (3) that violation of these
standards is actionable and compensable in damages to the victims.
principles emerge from rulings rendered by the United Nations
Human Rights Committee in the course of carrying out its adjudicatory
role under the Optional Protocol to the Civil and Political Rights
Covenant (the "Optional Protocol"). n119 These authoritative
interpretations and applications of the Covenant reflect an index
of the scope of the global community's recognition and acceptance
of the principles of the Covenant in this regard as obligatory.
In Aduayom v. Togo, n120 for[*84] example, the Human Rights Committee
considered a claim under Article 19 of the Civil and Political
Rights Covenant brought by a group of authors who were arrested
and suspended from their public employment for various political
offenses, including possession of pamphlets and other documents
critical of the government of Togo and outlining the organization
of a new political party. The Committee determined that the Togo
government's refusal to reinstate the claimants to their jobs
and compensate for lost wages constituted a violation of Article
19's right to freedom of political opinion and expression for
which the state had provided no justification pursuant to any
of the exceptions recognized under Article 19(3). In so ruling,
the Committee observed that:
the freedom of information and expression are
cornerstones in any free and democratic society. It is on the
essence of such societies that its citizens must be allowed to
inform themselves about alternatives to the political system/
parties in power, and that they may criticize or openly and publicly
evaluate their governments without fear of interference or punishment,
within the limits set by Art. 19(3). n121
n119 See G.A. Res. 2200 A
(XXI), U.N. Doc. A/6316 (1966), reprinted in International Instruments,
supra, Vol. I, Pt. 1, at 44-45. As of August 21, 2002, of the
156 state signatories of the Civil and Political Rights Covenant,
107 had signed and 102 had acceded to the Optional Protocol. See
Status of Ratifications of the Principal International Human Rights
Treaties, at http://www.unhchr.ch/pdf/report.pdf (August 21, 2002).
n120 1 B.H.R.C. 653 (1996).
n121 Id. at P 7.4; see also
Ross v. Canada, 10 B.H.R.C. 219, PP 11.1-11.6 (U.N. H.R. Cmtee
2000) (finding no violation of Article 19 of the Covenant where
the state demonstrated that the challenged interference with freedom
of expression satisfied the standards set forth in Article 19(3),
in that the restriction was imposed by law and did not go farther
than necessary to achieve a legitimate protective function); Faurisson
v. France, 2 B.H.R.C. 1, PP 9.1-10 (1996) (same); HKSAR v. Ng
Kung Siu, 6 B.H.R.C. 591 (Hong Kong Ct. App. 1999) (finding a
violation of Article 19(3) in the conviction of a defendant under
a national flag ordinance for defacing a flag during a peaceful
in a similar vein construing the freedom of conscience, opinion
and expression provisions of the European Convention, n122 which
parallel those of the Civil and Political Rights Covenant, have
been rendered by the European Court of Human Rights, as well as
by some national courts. In Surek v. Turkey, n123 the European
Court found a violation of Article[*86] 10 of the European Convention
in the conviction and sentencing of two journalists for publication
of interviews with the leader of a Turkish separatist organization
that was declared illegal under national law, where there was
no evidence that the political opinions expressed in the interviews
could be construed as incitement to violence and the state action
could not otherwise be justified as necessary under the exceptions
of Article 10(2) of the Convention, a provision the court noted
must be strictly construed. n124 Among the essential premises
the court reaffirmed in its determination, which awarded compensatory
damages to the claimants, was that freedom of expression constitutes
"one of the basic conditions ... for each individual's self-fulfillment."
n122 Article 10 of the European
1. Everyone has the right
to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.
This Article shall not prevent States from requiring the licensing
of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms,
since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as
are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality
of the judiciary.
supra, Vol. II at 77.
n123 7 B.H.R.C. 339, PP 57-64
(Eur. Ct. H.R. 1999).
n124 Id. P 57.
n125 Id.; see also Redmond-Bate
v. Dir. of Pub. Prosecutions, 7 B.H.R.C. 375, P 20 (High Ct.,
Qns. Bench 1999) (same).
from the interpretation and application given by these international
bodies and national courts to the exercise of freedom of political
opinion and expression that if the state violates the right when
it employs its legal process to prosecute and punish individuals
who profess views at odds with the government's orthodoxy, it
would contravene those fundamental human rights principles and
ends even more readily in instances where the state resorts to
utter violence and lawlessness as the means to commit the internationally
proscribed offenses. Hence, a systematic campaign of terror and
violence conceived and arbitrarily waged by state agents arising
not from any legitimate response to a demonstrable need related
to the protection of public order, health or safety or other imperative
governmental purpose, but rather hatched and calculated to suppress
political opinion and expression, [*88] is neither provided by
law, necessary to safeguard other vital rights or public purposes,
nor proportionate to any justifiable state aims pursued. When
accompanied by extreme deprivations of life and liberty and unwarranted
invasions of privacy as the instruments employed to achieve these
repressive ends, the state's actions present unique dimensions
that should qualify under a standard requiring a consistent pattern
of gross violations of internationally recognized human rights.
n126 The United States Foreign
Assistance Act of 1961 bars assistance to the government of "any
country which engages in a consistent pattern of gross violations
of internationally recognized human rights, including torture
or cruel, inhuman, or degrading treatment or punishment, prolonged
detention without charges, causing the disappearance of persons
by the abduction and clandestine detention of those persons, or
other flagrant denial of the right to life, liberty, and the security
of person ...." 22 U.S.C. § 2151n(a). See also 22
U.S.C. § 2304; International Financial Assistance Act of 1977,
22 U.S.C. § 262d (expressing United States policy to oppose
assistance to such governments by international financial institutions).
to the Case At Bar
the infringements committed by ZANU-PF of Plaintiffs' rights of
freedoms of political belief, opinion and expression were sufficiently
systematic and gross to warrant a finding of a violation of international
law and corresponding liability, as well as an award of consequential
damages under the ATCA in accordance with the Magistrate Judge's
recommendations in this case.
states may differ on the general content of certain political
freedoms and the depth of their commitment to protect them. Their
practices may vary as to the scope of the state's obligations
to initiate defined measures to ensure meaningful exercise by
their nationals of political rights universally recognized. And
while nations may concede certain wrongful human rights practices
as culpable excesses, or deny the existence of alleged violations
of certain individual freedoms as grounded on legitimate political
particularities of sovereign states, or as not supported by pertinent
facts, few would justify or defend by legally supportable reasons
that, as a matter of domestic or international law, a sufficient
mandate exists for a state, as a means of advancing[*90] valid
public purposes, to engage in an affirmative campaign of systematic
harassment, egregious organized violence and terror, and arbitrary
invasions of individual life, liberty and privacy specifically
intended to deprive its people of freedoms of political thought,
conscience, opinion and expression. This standard should govern
especially where, as here, these rights are professedly recognized
by the state's own organic law and avowed by the state as universal
norms it has pledged to confer, honor and protect. n127
n127 Zimbabwe is a signatory
of the United Nations Charter, the Civil and Political Rights
Covenant and the African Charter. (Laue Aff., P 15.)
true that under certain exigencies threatening safety, security
or public order, the state may justifiably impose reasonable restraints
on the exercise of these freedoms. n128 Article 19(3) of the Civil
and Political Rights Covenant expressly recognizes that exercise
of freedom of expression is subject to restrictions. But the exception,
strictly construed[*91] by the authorities that have ruled on
it, are circumscribed by the limitations. There is no evidence
in this case of the existence of any public emergency officially
proclaimed, or any necessity of national security or public order,
that may have presented even colorable grounds to justify the
state's actions as a warranted derogation from its obligations
to ensure Plaintiffs' rights. n129
n128 See, e.g., Gitlow v. New York, 268 U.S. 652, 666-67,
69 L. Ed. 1138, 45 S. Ct. 625 (1925); Schenck v. United
States, 249 U.S. 47, 52, 63 L. Ed. 470, 39 S. Ct. 247, 17 Ohio
L. Rep. 149 (1919).
n129 See Civil and Political
Rights Covenant, supra, Arts. 4(1), 4(2) and 19(3), reprinted
in International Instruments, supra, Vol. I, Pt. 1, at 22, 28.
consideration may weigh in the balance of gradations that may
tip the measure of misconduct into the more severe scale deemed
sufficiently gross or systematic for the purposes of assessing
state violations of internationally recognized standards. [*92]
In general, sovereign hypocrisy and cynicism, manifest in a state's
failure to invest its domestic law and justice system with substance
and force enough to enable its citizens meaningfully to exercise
internationally recognized civil and political rights the state
itself publicly embraces, may not suffice by itself to comprise
a violation of universal norms. But hypocrisy exposed and materialized
in the power of the state committed to organized brutality and
violence inflicted against its own people and specifically calculated
to deny political freedoms of conscience, opinion and expression
the state itself ostensibly has conferred, may be a different
matter. For, when the state undertakes to give expression and
force of law not to foster the protection of fundamental human
rights it publicly proclaims, but rather to execute systematic
denials of those freedoms, the action may cross over the imprecise
line and assume the added dimension of virulence necessary to
transgress into the domain of what qualifies as a pattern of gross
violations of universal norms.
unleashing a consistent pattern of violence and terror upon people
led to believe, by the state's own domestic[*93] and international
pronouncements, that those rights were theirs to enjoy, naked
cynicism then not only substantiates the state's public deception
in not sufficiently safeguarding those human rights, but may compound
a failure to act that by itself may not be cognizable under one
measure of illegality into a fury of affirmative wrongs and injuries
actionable under another. This consideration is similar, albeit
in a different context, to the principle of the common law of
torts that a state may not be held liable for taking no action
to enact remedial measures to address a potentially harmful condition
it has no duty to correct, but may be found responsible for injuries
when its agents do interject themselves into the situation and
undertake related actions in the course of which they do not exercise
the requisite standard of care the circumstances demand. n130
In the final analysis, when a state not only so eviscerates its
own duty to ensure fundamental domestic and internationally recognized
human rights as to render them nothing more than a hollow formalism,
but also itself intentionally perpetrates gross violations of
those very rights, the resulting combination of harms crosses[*94]
the threshold of individual protections prevailing under universally
recognized human rights norms.
n130 See, e.g., Raucci v. Town of Rotterdam, 902 F.2d 1050,
1055-56 (2d Cir. 1990); Sorichetti v. City of New York,
65 N.Y.2d 461, 482 N.E.2d 70, 74-75, 492 N.Y.S.2d 591 (N.Y. 1985).
basis of the preceding considerations and analysis, the Court
concludes that Plaintiffs have established a violation of an internationally
recognized norm to a right of freedom of political beliefs, opinion
and expression without arbitrary and unjustified interference
by the state.
Court also notes that apart from the status of the political freedoms
Plaintiffs assert under international law, these rights are also
recognized under Zimbabwe law, although the scope of a municipal
cause of action for monetary damages to vindicate these rights
is somewhat ambiguous. The Zimbabwe Constitution contains explicit
guarantees and prohibitions safeguarding freedoms of expression,
[*95] of conscience, and of assembly and association. n131 Specifically,
these rights are defined to proscribe that no person shall be
hindered in the enjoyment of "freedom to hold opinions and
to receive and impart ideas and information without interference,"
n132 as well as the "right to assemble freely and associate
with other persons and in particular to form or belong to political
parties ... or other associations for the protections of his interests."
n131 See Zimbabwe Const. Arts.
11, 20, 21; Laue Aff., P 14.
n132 Zimbabwe Const. Art.
n133 Id. Art. 21(1).
the foregoing provisions, a private action ordinarily does not
exist to recover monetary compensation for violations of the specified
rights, except that persons aggrieved by the unlawful conduct,
including decedents' spouses and dependents, may be entitled to
sue for damages where the wrong is also founded on a cause of
action that falls within principles such as those comprising common
law assault, torture or wrongful death. [*96] n134 The Court construes
these provisions as sufficient to warrant a finding of liability
and an award of compensatory damages to Plaintiffs with respect
to ZANU-PF's violations of Zimbabwe law. n135
n134 See Laue Aff., P 14.
n135 However, there is no
indication in the materials presented to the Court as to whether
punitive damages could be awarded under Zimbabwe law with regard
to a violation of these political rights.
Magistrate Judge determined here, an analogous basis for liability
exists under federal law for violations of First Amendment rights,
which include freedoms of speech, assembly, protest and association.
n136 Insofar as the Court has determined that Plaintiffs' injuries
resulted from violations of the law of nations also recognized
under federal law, Plaintiffs are entitled to compensation under
n136 See Tachiona III,
216 F. Supp. 2d at 280 (citing Petramale v. Local No. 17
of Laborers Int'l Union of N. Am., 847 F.2d 1009, 1013 (2d Cir.
1988), and Phillips v. Bowen, 115 F. Supp. 2d 303, 306
(N.D.N.Y. 2000), aff'd, 278 F.3d 103 (2d Cir. 2002)).
basis of the foregoing authority, the Court adopts the Magistrate
Judge's recommendation to award compensatory damages and punitive
damages with regard to Plaintiffs' Claims Three and Four.
Inhuman or Degrading Treatment
Plaintiff's Claim Five describes ZANU-PF's
acts of cruel inhuman or degrading treatment. The Magistrate Judge
recommended an award of compensatory and punitive damages with
respect to this claim. The wrongful conduct upon which the Magistrate
Judge found liability, encompasses: n137
. The suffering of Tapfuma Chiminya, Mathew Pfebve,
and David Stevens, prior to their death, including being bound
and gagged and forced to ride in a vehicle for hours, being dragged
down the street in front of neighbors and loved ones, and being
placed in fear of impending death;
. The suffering of Efridah Pfebve, who had watched
her elderly mother being stoned by an angry mob, saw her brothers
and elderly father being dragged down the street and beaten, and
observed her home being ransacked; and
. The harms to Evelyn Masiti and Elliot Pfebve,
who lived in constant threat of death by defendant and suffered
repeated attacks upon their persons, families [*98]and property.
n137 See Tachiona III, 216 F. Supp. at 281.
courts which have considered the issue have expressed divergent
views as to whether cruel, inhuman or degrading treatment, though
broadly expressed and accepted in the abstract as an international
norm, possesses the requisite elements of universality and specificity
to constitute a recognized proscription under the customary law
of nations. In Forti v. Suarez-Mason, n138 for example, the court
sustained its earlier dismissal of a claim of cruel, inhuman or
degrading treatment upon concluding that there was not a sufficiently
universal consensus defining the content of the prohibited conduct
as a distinct international tort so as to be actionable under
n138 694 F. Supp. 707, 711-12 (N.D. Cal. 1988) ("Forti
Xuncax court, however, reached a different result. n139 The court
did note that the prohibition against cruel, inhuman or degrading
treatment poses more complex definitional problems than other
recognized international norms. Nonetheless, the court concluded
that "it is not necessary for every aspect of what might
comprise a standard ... be fully defined and universally agreed
before a given action meriting the label is clearly proscribed
under international law ...." n140 It then held that any
conduct proscribed by the United States Constitution and by a
cognizable principle of international law falls within the scope
of cruel, inhuman or degrading treatment and is thus actionable
under the ATCA. n141
n139 See Xuncax, 886 F. Supp. at 186-87.
n140 Id. at 187.
courts have expressed no reservations in accepting cruel, inhuman
or degrading treatment as a "discrete and well recognized
violation of international law," and a separate ground for[*100]
liability under the ATCA, at least insofar as the unlawful conduct
in question would also violate the Fifth, Eighth and/ or Fourteenth
Amendments to the United States Constitution. n142
n142 Hawa Abdi Jama v.
United States INS, 22 F. Supp. 2d 353, 363 (D.N.J. 1998);
Mehinovic, 198 F. Supp. 2d at 1347-48 (citing Abebe-Jira,
72 F.3d at 847; Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345,
1362 (S.D. Fla. 2001)).
for doubts as to the scope of consensus and definitional content
of the prohibition against the cruel, inhuman or degrading treatment
arise by reason of ambiguous evidence of what unlawful conduct
falls within the ascertainable contours of the action, beyond
the bounds of what is already accepted as encompassed by prohibitions
of torture, summary execution and prolonged arbitrary detention.
n143 The conceptual difficulties are compounded because while
the experts concur as to the existence of the norm, they offer
[*101]little analytic guidance helpful in charting its precise
frontiers as distinct wrongful conduct. n144 Thus, while most
international declarations and covenants that proscribe torture
also extend by conjunction to cruel, inhuman or degrading treatment
or punishment, n145 those instruments contain specific definitions
of torture but not of cruel, inhuman or degrading treatment. n146
n143 See Forti I, 672 F. Supp. at 1543; Xuncax,
886 F. Supp. at 186.
n144 See Forti II, 694 F. Supp. at 711-712.
n145 See, e.g., Universal
Declaration, supra, Art. 5, reprinted in International Instruments,
supra, Vol. I, Pt. 1, at 2 ("No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.");
Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (the "Torture Declaration"), Art. 1, G.A.
Res. 3452, U.N. Doc. A/10034 (1975), reprinted in International
Instrument, supra, Vol. I., Pt. 1, at 290 ("Any act of torture
or other cruel, inhuman or degrading treatment or punishment is
an offense to human dignity[.]"); Civil and Political Rights
Covenant, supra, Art. 7, reprinted in International Instruments,
supra, Vol. I, Pt. 1, at 23 ("No one shall be subjected to
torture or to cruel, inhuman, or degrading treatment or punishment.");
African Charter, supra, Art. 5, reprinted in International Instruments,
supra, Vol. II at 332 (same); European Convention, supra, Art.
3, reprinted in International Instruments, supra, Vol. II at 74
(same); Restatement of Foreign Relations, supra § 702 (same).
In Xuncax, the court noted that the provisions of the Torture Convention
relating to torture are more explicit and forceful than those
describing cruel, inhuman or degrading treatment. 886 F. Supp. at 186 n. 33. While that Convention defines
"torture," it contains no explicit definition of cruel,
inhuman or degrading treatment. Moreover Article 14 prescribes
that every member state ensure in its legal system that victims
of torture obtain redress and have an enforceable right to fair
and adequate compensation. In contrast, Article 16 commits states
only to undertake to prevent other acts of cruel, inhuman or degrading
treatment that do not amount to torture. See id.
n146 See, e.g., Torture Declaration,
supra, Art. 1, reprinted in International Instruments, supra,
Vol. I, Pt. 1, at 293-94.
the absence of a distinct definition for what constitutes cruel,
inhuman or degrading treatment, various authorities and international
instruments make clear that this prohibition is conceptually linked
to torture by shades of misconduct discernible as a continuum.
The gradations of the latter are marked only by the degrees of
mistreatment the victim suffers, by the level of malice the offender
exhibits and by evidence of any aggravating or mitigating considerations
that may inform a reasonable application of a distinction. Several
courts and other authorities have recognized that: "generally,
cruel, inhuman or degrading treatment includes acts which inflict
mental or physical suffering, humiliation, fear and debasement,
which do not rise to the level of 'torture' or do not have the
same purposes as 'torture'." n147
n147 Mehinovic, 198 F.
Supp. 2d at 1348; see also id. ("'Torture is at the extreme
end of cruel, inhuman or degrading treatment.'") (quoting
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
101 Senate Exec. Rep. 30, at 13 (1990)); Torture Declaration,
supra, Art. 1(2) International Instruments, supra, Vol. I, Pt.
1, at 290 ("Torture constitutes an aggravated and deliberate
form of cruel, inhuman or degrading treatment or punishment.").
it may present difficulties to pinpoint precisely where on the
spectrum of atrocities the shades of cruel, inhuman, or degrading
treatment bleed into torture should not detract from what really
goes to the essence of any uncertainty: that, distinctly classified
or not, the infliction of cruel, inhuman or degrading treatment
by agents of the state, as closely akin to or adjunct of torture,
is universally condemned and renounced as offending internationally
recognized norms of civilized conduct. Nor should the challenges
of drawing distinctions deter from the task of supplying content
drawn from real experience. It is well to recall that among the
major sources of customary international law are judicial decisions
rendered on the specific subject, rulings that may illuminate
the meaning of particular standards, manifest guidance as to the
course of the law and measure the breadth and strength of international
consensus with regard to a given behavioral norm.
the growth of the common law, universally recognized norms ripen
into settled law incrementally by the accretions of teachings
informed by real events. Insofar as actual cases offer proper
opportunities to resolve doubts [*104]and fill in gaps, the natural
evolution of the law will be advanced by the authorized and principled
exercise of judicial jurisdiction to decide them. Conversely,
where uncertainty persists by dearth of precedent, declining to
render decision that otherwise may help clarify or enlarge international
practice, and thereby foster greater understanding and assent
regarding the content of common behavioral rules, creates a self-fulfilling
prophecy and retards the growth of customary international law.
Accordingly, following the reasoning and guidance of the courts
that have applied the standard, this Court finds that the unlawful
conduct the Magistrate Judge described as grounds for liability
and damages under Plaintiffs' Claim Five constitutes cruel, inhuman
or degrading treatment prohibited under principles of international
clearly there are areas of overlap insofar as the more aggravated
torture misconduct ordinarily would also encompass cruel, inhuman
or degrading of treatment, there are also instructive differences
that offer guidance as to some proper demarcations. As may have
occurred in the instant case, a victim who has been tortured and
dies from the assaults, and[*105] whose corpse is then dragged
through the streets by the assailants, at that point is conceptually
no longer himself personally a subject of torture or even cruelty.
The notion of inflicting severe pain and suffering on the dead
is a tautology. But life's veneration of life does not end at
the grave; death does not extinguish organized society's reverence
for human dignity or the law's recognition of all aspects of life's
experience; nor does it diminish protection against life's degradation.
Throughout the ages, in almost every culture, civilization has
embodied rites with emblems and taboos signaling that the dignity
of the human body is worthy of safeguards against desecration
even after death. To that end, laws, customs and practices generally
define separate classes of offenses whose focal wrong is not the
conscious infliction of physical pain and suffering on the living,
but the hurt perpetrated upon the living by the defiling of the
n148 See, e.g., Restatement
(Second) of Torts: Interference with Dead Bodies § 868 (1982)
(defining a cause of action for interference with dead bodies);
Model Penal Code § 250.10 (Proposed Official Draft 1962) (making
treatment of a corpse in a way that would "outrage ordinary
family sensibilities" a misdemeanor); Criminal Code, R.S.C.,
ch. C-46, § 182 (1985) (Can.) (criminal law provision protecting
the dignity of a corpse); see also Tyler Trent Ochoa, et al.,
Defiling the Dead: Necrophilia and the Law, 18 Whittier L.
Rev. 539, 542-543 ("All societies for which there is
any record have had customs concerning respect for corpses and
the treatment of the bodies of the dead.").
measure of decency, the public dragging of a lifeless body, especially
in front of the victim's own home, for close kin and neighbors
to behold the gruesome spectacle, would rank as a degradation
and mean affront to human dignity. By the same token, the relatives
necessarily made to bear witness to the torture and degradation
of their kin, or the ransacking of their common property, are
technically not themselves victims of torture. Few would quarrel,
however, that the offenders' lawlessness would cause these individuals
themselves to suffer the severe emotional pain and indignities
associated with forms of cruelty and inhuman treatment. Thus,
wherever the nuances of conduct may blend at the frontiers that
define the limits of cruel, inhuman or degrading treatment, this
Court has no hesitation finding that the wrongs committed by ZANU-PF
in this case fall well within the realm of the execrable -- unlawful
conduct that would be condemned and rejected as contravening well-established
and universally recognized norms of international law.
law also contains prohibitions against cruel, inhuman or degrading
treatment. Specifically, the Zimbabwe Constitution[*107] provides
that "no person shall be subjected to torture or to inhuman
or degrading punishment or other such treatment." n149 It
is not clear from the Zimbabwe law presented to the Court whether,
behind this general proscription, Zimbabwe law recognizes a distinct,
clearly defined private cause of action encompassing cruel, inhuman
and degrading treatment. Some of the wrongs Plaintiffs charge
under this claim, however, describe unlawful conduct that clearly
would fall within the scope of assaults entailing homicide, injury
to persons, destruction or damage to property. Such claims would
be compensable under principles of Zimbabwe common law. n150
n149 See Zimbabwe Const. Art.
n150 See Laue Aff., PP 11-13.
whether or not such injuries, inflicted by state agents or under
the color of law, would state cognizable rights of action under
Zimbabwe law, there can be no dispute that the actions describe
violations other courts have found to fall within the proscriptions
of the Fifth, Eighth[*108] and Fourteenth Amendments of the United
States Constitution. n151 The dimension the offenses involved
in these cases have in common include the wanton infliction of
mental or physical suffering or assaults that manifest callous
disregard for human dignity committed by the state or its agents
through sustained, systematic and deliberate conduct engaged in
the service of no legitimate public purpose.
n151 In the United States'
ratification of the Civil and Political Rights Covenant the Senate
expressed a reservation to Article 7, which relates to torture
and cruel, inhuman or degrading treatment or punishment. It provides
that "Art. 7 protections shall not extend beyond protections
of the 5th, 8th and 14th Amendments of the U.S. Constitution."
Senate Comm. on Foreign Relations Report on the International
Covenant on Civil and Political Rights, S. Exec. Report. No. 23,
102nd Cong., 2d Sess. (1992), reprinted in 31 I.L.M. 645, 646
(1992). See Mehinovic,
198 F. Supp. 2d at 1347-48; Cabello, 157 F. Supp. 2d at
1360; Jama, 22 F. Supp. 2d at 363; Xuncax, 886 F.
Supp. at 187.
Discrimination and Unlawful Seizure of Property
regard to Plaintiffs' Claims Six and Seven, the Magistrate Judge
recommended an award of compensatory and punitive damages to Maria
and David Stevens for the racial violence and terror they suffered
through ZANU-PF unlawful conduct, and for damages caused by the
Zimbabwe government's racially motivated confiscation of their
farm, home and possessions motivated by racial animus. With respect
to these claims, this Court found no basis to recognize that a
taking of property by a sovereign state from its own citizens,
as asserted here, constitutes a violation of well-established,
universal norms of international law. n152 The Court left open
the theoretical possibility of exercising pendent jurisdiction
over the claim, but expressed reluctance to do so given the absence
of a proof of relevant Zimbabwe municipal law to provide a grounds
for such a remedy.
n152 See Tachiona III, 216 F. Supp. 2d at 267.
racial discrimination and racially-motivated violence, especially
where practiced as a matter of state policy, is proscribed as
violations of international standards in various international
instruments. n153 Plaintiffs' claims of such misconduct are also
closely analogous to contraventions of well-established principles
embodied in the Fourteenth Amendment of the United States Constitution
and related federal civil rights statutes making such violations
n153 See, e.g., Universal
Declaration, supra, Arts. 2, 7, reprinted in International Instruments,
supra, Vol. I, Pt. 1, at 2, 3. These provisions declare in pertinent
Everyone is entitled to all
the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status.
All are equal before the law
and are entitled without discrimination to equal protection of
the law. All are entitled to equal protection against any discrimination
in violation of this Declaration and against any incitement to
Id.; see also Civil and Political
Rights Covenant, supra, Arts. 2, 4(1), 26, reprinted in International
Instruments, supra, Vol. I, Pt. 1, at 22, 23, 30; African Charter,
supra, Arts. 2, 3, 4, 5, reprinted in Internatinoal Instruments,
supra, Vol. II at 331, 332; International Convention on the Elimination
of All Forms of Racial Discrimination, adopted Dec. 21, 1965,
Arts. 2, 3, 4, 5, 660 U.N.T.S. 195, 5 I.L.M. 352 (1966),
reprinted in International Instruments, supra, Vol. I, Pt. 1,
at 68-71; Convention on the Prevention and Punishment of the Crime
of Genocide, 78 U.N.T.S. 277 (1951), reprinted in International
Instruments, supra, Vol. I, Pt. 2, at 669; International Convention
on the Suppression and Punishment of the Crime of Apartheid, Arts.
II, III, IV, G.A. Res. 3068, 28 U.N. GAOR, Supp. 30, U.N. Doc.
A/9030 (1973), reprinted in International Instruments, supra,
Vol. I, Pt. 1, at 82-83; Restatement of Foreign Relations, supra
n154 See 42 U.S.C. § 1983;
Johnson v. Smith, 890 F. Supp. 726, 728-29 (N.D. Ill. 1995).
have submitted evidence to establish that the Zimbabwe Constitution
and other laws guarantee fundamental individual rights regardless
of race, origins, color, creed or sex, and prohibits all forms
of discrimination on these grounds. n155
n155 See Zimbabwe Const. Arts.
11, 23; Laue Aff., PP 14, 15.
Zimbabwe Constitution forbids the state's seizure, damage or destruction
of property without fair compensation. n156 Plaintiffs cite no
authority, however, to support a determination that the state
seizure of property of its own nationals without fair compensation
described in Claim Seven constitutes a violation of well-defined,
universal and obligatory norms of international conduct. It is
true that the Universal Declaration, Art. 17, contains references
[*112] the right to own property and not be arbitrarily deprived
of it. n157 However, no corresponding right was included in the
Civil and Political Rights Covenant, an omission that diminishes
any claim to universal consensus concerning the status of this
right as customary international law.
n156 See Zimbabwe Const. Art.
16; Laue Aff., P 12 (iii).
n157 See International Instruments,
Vol. I, Pt. 1, at 4.
Court has found no other persuasive evidence that universal consensus
exists recognizing contravention of this principle as customary
international law and defining the boundaries of the offenses
with sufficient specificity. To the contrary, the case law that
exists has rejected such a claim. In Dreyfus v. Von Finck, n158
the Second Circuit held that a state's seizure of the property
of its nationals, even if racially motivated, was not a violation
of the law of nations. Insofar as Plaintiffs assert that the invasions
and unlawful takings of property for which ZANU-PF were racially-inspired,
such[*113] misconduct is encompassed within the actions the Court
sustained as recognized violations of international law under
n158 534 F.2d 24, 30 (2d
Cir. 1976), cert. denied, 429 U.S. 835 (1976); see
also Jafari v. Islamic Republic of Iran, 539
F. Supp. 209, 214-15 (N.D. Ill. 1982) (holding that the expropriation
by a state of property of its own nationals does not contravene
the law of nations); Restatement of Foreign Relations, supra §
702 cmt. k (noting that "there is ... wide disagreement among
states as to the scope and content of that right, which weighs
against the conclusion that a human right to property generally
has become a principle of customary law."); see also Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 428-30, 11 L. Ed. 2d 804, 84 S. Ct. 923 (1964) (noting
the wide divergence of authority as to international limitations
on a state's taking of alien property).
Plaintiffs' complaint invoked the Court's pendent[*114] jurisdiction
under 28 U.S.C. § 1367 and asserted claims under Zimbabwe
law. n159 The Court therefore will exercise its discretion to
assert authority over those claims. Having examined the provisions
of the Zimbabwe Constitution and related law called to its attention,
the Court is satisfied that Plaintiffs have asserted rights and
cognizable actions under Zimbabwe law that would entitle them
to the compensatory damages recommended by the Magistrate Judge
with respect to Claim Seven.
n159 See Compl. PP 7, 210.
with Claims Six and Seven, Plaintiffs made a general request for
punitive damages, unlike the specific request they asserted with
regard to their other five claims. However, because there is no
evidence on the record to support a finding that Zimbabwe law
would authorize the awarding of punitive damages in connection
with unlawful seizure of property, the Court does not accept the
portion of the Report that recommends Plaintiffs' recovery of
exemplary damages with[*115] regard to Claim Seven.
Court adopts the Magistrate Judge's recommendation, as modified
above, that Plaintiffs be awarded compensatory and punitive damages
A. CLAIMS ONE AND TWO: