Partial Victory for Zimbabwe President Mugabe in U.S. Litigation Alleging Human Rights Violations

Linda M. Keller
March 12, 2002
            Plaintiffs, citizens of Zimbabwe, brought a class action against Robert Mugabe, President of Zimbabwe, and Stan Mudenge, Foreign Minister, individually and as officers of the Zimbabwe African National Union-Patriotic Front (ZANU-PF) in the United States District Court for the Southern District of New York. [1]   Plaintiffs alleged that ZANU-PF and the individual defendants planned and executed a campaign of violence designed to intimidate and suppress its political opposition, the Movement for Democratic Change ('MDC').  Specifically, Plaintiffs charged that the defendants' conduct included "murder, torture, terrorism, rape, beatings, and destruction of property...." [2]   Plaintiffs based their claims on the Alien Tort Claims Act (ATCA), the Torture Victim Protection Act (TVPA), the general federal question jurisdictional statute, and "fundamental norms of international human rights law." [3]
            Defendants Mugabe and Mudenge were served while they were in New York City as representatives of Zimbabwe to the United Nations Millennium Summit. They were served, however, outside of the U.N. Headquarters Area.  Plaintiffs alleged that Mugabe was served when he arrived at an unofficial gathering of a private New York group raising money for ZANU-PF. After plaintiffs moved for entry of a default judgment, defendants Mugabe and Mudenge asked the State Department for a "Suggestion of Immunity."  The State Department agreed, indicating to the court that Mugabe and Mudenge were immune from suit and that "'permitting this action to proceed against the President and Foreign Minister would be incompatible with the United States' foreign policy interests.'" [4]  The State Department urged dismissal of the claims against the defendants based on head-of-state immunity, diplomatic immunity and "personal inviolability attaching to both Mugabe and Mudenge." [5]
            The court recently dismissed plaintiffs' claims against Mugabe and Mudenge individually based on head-of-state immunity and diplomatic immunity.  The court, however, allowed claims against ZANU-PF to proceed despite the fact that service of process on the political party was made upon Mugabe and Mudenge.
Head-of-State Immunity
            The court undertook an extensive analysis of sovereign immunity from the absolute immunity doctrine embodied in The Schooner Exchange [6] to the codification of restrictive immunity in the Foreign Sovereign Immunities Act (FSIA). [7]   The court concluded that the FSIA did not abrogate common law head-of-state immunity, and that Mugabe (as President) and Mudenge (as Foreign Minister) were entitled to immunity from suit. [8]
            The court analyzed two divergent strands of case law related to immunity of foreign officials. The first strand is embodied in Chuidian v. Philippine National Bank [9] and its progeny.  The Chuidian court concluded that the FSIA covers natural persons who are government officials, as well as governments themselves, but held that sovereign immunity for such officials does not extend to their acts beyond the scope of their governmental authority. [10]   The FSIA was designed to remove the State Department as the arbiter of sovereign immunity and turn that role over to the courts. [11]   Thus, if Mugabe and Mudenge were covered by the FSIA and acted outside their proper governmental roles, under the Chuidian reasoning they would not be immune from suit or service of process and the court would not be required to heed the  State Department's suggestion of immunity.
            On the other hand, a federal district court in Lafontant v. Aristide [12] distinguished head-of-state immunity from sovereign immunity, allowing State Department suggestions of immunity to control whether an official is entitled to head-of-state immunity. [13]   Under this strand, if the State Department suggests immunity the court would not concern itself with whether or not the officials acted outside their proper governmental roles. The Mugabe court "concludes, though not fully accepting some of Aristide's implications nor rejecting all aspects of Chuidian, that the analysis in Aristide better accords with this Court's reading of the FSIA text, purposes and legislative history.  The Aristide outcome is also more consistent with other cases precisely on point, as well as with prevailing practices of customary international law as reflected in United States jurisprudence." [14]   The Mugabe court also honored the State Department's suggestion that Mugabe's head-of-state immunity extended to Mudenge, traveling as Foreign Minister in Mugabe's official entourage. [15]
            The court also put forth various policy reasons supporting the finding of immunity for Mugabe and Mudenge.  First, given the unique sensibilities that attach to the person of the head of state, there is greater potential for harm to diplomatic relations when a suit targets a head of state than when it is lodged against a governmental entity or the state as a whole under the FSIA. [16]   Second, the head of state (unlike the sovereign state) is not an abstraction.  The head of state travels, and should be given at least as much protection as is afforded to diplomats. [17]   Third, even if the language of the FSIA ("instrumentality" of the state) can be stretched to cover an individual officer of the state, it would be too awkward to stretch it further to reach the head of state who embodies the sovereign state itself. [18]   Fourth, it is more difficult to distinguish between the official or private acts of a head of state than of a lower-level agent of the state. [19]   Fifth, head-of-state status requires a formal act of recognition by the Executive branch; as a result, it necessitates a more nuanced political and diplomatic judgment than for lesser officials or agents. [20]   Finally, the Executive Branch is better suited than the Judiciary to decide a number of issues related to the status and functions of a head of state. [21]
Diplomatic Immunity
            The court also found that Mugabe and Mudenge were immune as representatives to the United Nations.  Under the court's reading of the Convention on Privileges and Immunities of the United Nations, [22] temporary representatives of Member States are granted the same privileges and immunities as those given to accredited diplomats.  Moreover, "[h]eads-of-state and foreign ministers are precisely the types of officials who visit the United Nations for temporary purposes" and therefore receive "full diplomatic immunities" under the Convention. [23]   Such protection must be interpreted broadly and extends beyond the narrow boundaries of the particular conference. [24]   The court therefore rejected plaintiffs' argument that service was proper so long as the defendants were served while acting outside the scope of the U.N. conference. [25]
Personal Inviolability
            The U.S. government argued that Mugabe and Mudenge were inviolable for all purposes, so that any service of process on them -- even service intended for ZANU-PF -- was improper. [26]
            The court held that the State Department's Suggestion of Immunity is not controlling with regard to service of process. [27]   First, there is nothing in the history of head-of-state immunity that suggests it would extend derivative immunity to entities with which the head of state may be associated.  Second, service on a head-of-state aimed at establishing jurisdiction over matters  "collateral to the head-of-state's or diplomat's official status" [28] is not as likely to create diplomatic problems as service aimed at the head of state personally.  Here, ZANU-PF was sued institutionally, with service on Mugabe and Mudenge as senior officers of ZANU-PF.  Moreover, Mugabe and Mudenge were allegedly acting on behalf of ZANU-PF when served. [29]   Third, nothing in the FSIA eliminates service of process on government officials representing institutional defendants, even if those officials would be immune if served in connection with their own actions. [30]   Fourth, exceptions to inviolability have long existed. [31]   Finally, the court invoked the principle that no person is above the law:
[I]t should come as no surprise to heads-of-state and other high-ranking public officials that in some way at some point even they may be called upon to play a role in the public's quest for accountability for their privately inflicted harms.  To this greater good, acceptance of process on behalf of their surrogate entities or agents is the minimum contribution that heads-of-state can make in advancing the interests of larger justice.  In this way, an overarching end may be achieved at negligible sacrifice of the leader's public dignity perhaps already stained, and without hindrance to the performance of governmental roles. [32]
            The court emphasized that the purpose of head-of-state and diplomatic immunity is not to protect human rights abusers or to condone their wrongs.  Rather, "it is in the interest of comity among nations -- to safeguard friendly relations among sovereign states." [33]   The court noted that someday the move toward greater accountability may weaken if not eliminate the shield of immunity for private abuses of the sovereign's office, citing the recent experiences of Augusto Pinochet and Slobodan Milosevic.  "In the meantime, however, in the balancing of larger public values and priorities, individual claims sometimes unavoidably and regrettably end up with the shorter weight." [34]
Subject Matter Jurisdiction
            While the court found that Mugabe and Mudenge could be served on behalf of ZANU-PF because of the difference between suing a head-of-state and suing a group with which he is associated, it also found that ZANU-PF acted under color of law.  In order to state a claim under the ATCA for torture or summary execution, [35] plaintiffs must allege that the acts were committed by state officials or under color of law. [36]   Based on plaintiffs' allegations under the ATCA, ZANU-PF "became an integral arm of the state through which its apparent power extended to the wrongdoers." [37]   Similarly, the TVPA by its terms requires that the defendant be acting under actual or apparent authority.  Again, plaintiffs sufficiently alleged that ZANU-PF's campaign of torture and summary execution involved support from high-ranking government officials. [38]
            The court explicitly extended liability under ATCA and TVPA to groups such as ZANU-PF.  "Were liability in such cases to be limited so as to permit recovery only from the particular natural individuals who actually commit the underlying wrongful acts, the result would effectively nullify the purposes of the statutes." [39]  
Subsequent Developments
            The government of the United States (the Government) subsequently moved for reconsideration of the service of process on Mugabe and Mudenge as representatives of ZANU-PF.  It also moved to intervene for the purpose of appealing the decision. [40]   The court rejected the Government's reliance on treaty law to establish absolute inviolability. [41]   Even if the principle of inviolability applied, it would not provide an absolute shield. [42]   No such absolute inviolability exists based on customary international law. [43]   Finally, no policy grounds require absolute inviolability here. [44]
            The court also noted that the Government seemed to take the position that its reading of an international treaty is not only entitled to great weight, but is binding on the courts. [45]   The Government "implies that in practice once the Government has proclaimed its reading of particular treaty provisions, the Court's sole judicial duty would be obeisance . . . ." [46]   The court strongly rejected any such position, claiming that it "makes a mockery of constitutional separation of powers" and "would spell doom for judicial independence." [47]
            The court did, however, allow the Government to intervene in order to appeal after the entry of final judgment. [48]   In particular, the court found that the Government has a significant interest in the disposition of the case, which could implicate U.S. foreign relations.
            For further discussion of these and related issues, please see the previous ASIL Insights, "ICJ Ruling on Belgian Warrant," Feb. 2002, "Belgian Jury to Decide Case Concerning Rwandan Genocide," May 2001, "Pinochet Arrest in Chile," Dec. 2000, "The Democratic Republic of the Congo Requests the World Court to Order Belgium to Annul an Arrest Warrant issued against the Congo's Foreign Minister," Oct. 2000, "Alien Tort Claims Act Proceeding Against Robert Mugabe," Sept. 2000; "Possible Indictment of Pinochet in the United States," March 2000; "The  Indictment in Senegal of the Former Chad Head of State," Feb. 2000; "Request for Extradition of Miguel Cavallo from Mexico to Spain for Alleged Torture in Argentina," Sept. 2000; and "The Pinochet Arrest and Possible Extradition to Spain," Oct. 1998.
About the Author: 
Linda M. Keller is a Visiting Assistant Professor at the University of Miami School of Law, where she teaches international human rights law.
Addendum, October 2004:
The Court of Appeals for the cfm">International Law in Brief, October 30, 2004. (Adobe Acrobat 6.0 or higher is required) 
[1] See Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001).  Plaintiffs also initially named Jonathan Moyo, Minister for Information and Publicity, but apparently he was not served and plaintiffs did not pursue a default judgment against him.  Id. at 267 n.14.
[2] Id. at 265 (citing Complaint, para. 15).
[3] Id. at 264.
[4] Id. at 267.
[5] Id. at 268.  As discussed below, the third ground would require dismissal of claims against ZANU-PF for improper service of process through Mugabe and Mudenge.
[6] The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 297 (1812).
[7] 28 U.S. C. § 1603. 
[8] Mugabe, 169 F.Supp.2d at 296-97.
[9] 912 F.2d 1095 (9th Cir. 1990).
[10] Id. at 1103, 1106-07.
[11] Id. at 1100.
[12] 844 F.Supp. 128 (E.D.N.Y. 1994).
[13] Aristide, 844 F.Supp. at 139. See also Mugabe, 169 F.Supp.2d at 285-88 (discussing cases adopting similar reasoning).
[14] Mugabe, 169 F.Supp.2d at 281.
[15] Id. at 296.
[16] See id. at 290-91.
[17] See id. at 291-92.
[18] See id. at 292.
[19] See id.
[20] See id. at 292-93.
[21] See id. at 293.
[22] Adopted Feb. 13, 1946, United States accession, April 29, 1970, 21 U.S.T. 1418, 1 U.N.T.S. 16.
[23] Mugabe, 169 F.Supp.2d at 301.
[24] Id.
[25] By contrast, there was no immunity where Radovan Karadzic was a mere invitee representing the non-member entity of the self-proclaimed Republic of Srpska.  See Kadic v. Karadzic, 70 F.3d 232, 247 (2d Cir. 1996).
[26] Mugabe, 169 F.Supp.2d  at 302.
[27] Id. at 305.
[28] Id.
[29] Id. at 306.
[30] Id.
[31] Id. at 307-08.
[32] Id. at 308.
[33] Id. at 317.
[34] Id.
[35] Allegations of genocide or war crimes do not require any official support or involvement.  See Kadic v. Karadzic, 70 F.3d at 242-43.
[36] Id. at 313-14.
[37] Id. at 315.
[38] Id. at 316.
[39] Id. at 312.
[40] See Tachiona v. Mugabe, No. 00Civ.666(VM), 2002 U.S. Dist. LEXIS 2418 (S.D.N.Y. Feb. 14, 2002).
[41] Id. at *11.
[42] Id. at *19.
[43] Id. at *26.
[44] Id. at *26-27.
[45] Id. at *29.
[46] Id. at *29-30.
[47] Id. at *30.
[48] Id. at *30, 40.