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Full-text: October 29 2004
Deportation/exile of the Chagos Islanders


United States District Court
for the District of Columbia

FILED
OCT 29 2004 Nancy Mayer Whittington, Clerk U.S. District Court


No. 1:01-CV-02629 (RMU)


 )
Olivier Bancoult, et al.,)
Plaintiffs,)
)
v.)
)
Robert S. McNamara, et al.,)
Defendants.)
 )

Plaintiffs’ Supplemental Memorandum in Response to This Court’s Order Dated October 19, 2004

{p.1}

I.
Introduction

The Supreme Court decision in Sosa v. Alvarez-Machain affirmed that the Chagossians’ international law claims can and should be heard by this Court. 124 S.Ct. 2739 (2004) {200kb.html, 785kb.pdf}. ¶

The Court held that federal courts can hear claims based on fundamental norms of international law under the Alien Tort Claims Act, 28 U.S.C. § 1350 (2000) (“ATCA”).

Plaintiffs bring five claims against Defendants that are neither transitory nor trivial; rather, they are based on fundamental norms of international law recognized by civilized nations and defined with specificity: (1) torture; (2) cruel, inhuman, and degrading treatment; (3) genocide; (4) systematic racial discrimination; and (5) forced relocation. ¶

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For more than three decades, Defendants have committed numerous violations of well established international law stemming from the forced removal of the Chagossians from their homeland on the Chagos Archipelago and resulting in the consequential destruction of their society. ¶

The Sosa Court requires that, under the ATCA, Defendants may be held accountable for these violations in federal court.

In response to this Court’s Order dated October 19, 2004, Plaintiffs submit the following supplemental brief on how the Supreme Court decision in Sosa should guide this Court’s analysis to recognize Plaintiffs’ international law claims as actionable under the ATCA.

II.
The Supreme Court’s Decision in
Sosa v. Alvarez-Machain Confirms the Power of the Federal Courts to Address Violations of International Law

The Supreme Court in Sosa recognized the continuing responsibility of federal courts to protect foreign nationals from violations of universal norms and affirmed their right to bring suit in U.S. federal court. See Sosa, 124 S.Ct. at 2765 {785kb.pdf} (referring to previous federal court decisions in cases, such as Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), and Congressional action, {p.2} such as of the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 {28 U.S.C. § 1350, note} (“TVPA”), to support this scope of authority).

The Supreme Court acknowledged that the drafters of the ATCA designed the statute to create accountability for offenses recognized under customary international law and treaty law as violations of the law of nations. 1  See Sosa, 124 S.Ct. at 2765 {785kb.pdf}.{p.3}

The Court referred specifically to piracy, 2  infringement of the rights of ambassadors, 3  and violation of safe conducts 4  to demonstrate the distinctive features of violations of the law of nations. The reference to these three violations was not meant to serve as an exhaustive list. Rather, the Court, recognizing the evolving nature of international law, provided these examples to guide today’s federal courts in the inevitable task of determining whether a claim meets the universally recognized and clearly defined standard.{p.3}

Therefore, actionable norms must be as widely recognized today as these three violations were recognized in 1789. 5  {p.3}

In our case, the Chagossian Plaintiffs base their claims on the very principles considered by the drafters of the ATCA and acknowledged by the Court in Sosa — justice and redress for grave violations of fundamental norms universally recognized and clearly defined by the international community.

III.
Plaintiffs’ International Law Claims Meet the Standard Set Forth by the Supreme Court in Sosa and Are Thus Actionable in U.S. Courts Under the ATCA

Sosa verified that the Chagossians’ international law claims constitute actionable claims that can and should be heard by this Court. The Supreme Court held that claims brought under the ATCA must be ¶

“of international character accepted by the civilized world and defined with [] specificity.” ¶

124 S.Ct. at 2761 {785kb.pdf}. The Court acknowledged that this standard endorsed what federal courts have required in ATCA cases since Filártiga, for an international law claim to be actionable, it must be definable, universal, and obligatory. Id. at 2765-66. ¶

Each of the five claims presented by the Chagossians, torture, cruel inhuman, and degrading treatment, genocide, systematic racial discrimination and forced relocation, meets the Sosa standard and is thus actionable under the ATCA.

A.
Torture
Violates a Fundamental Norm of International Law Clearly Defined and Universally Accepted by Civilized Nations

Torture clearly meets the requirements of definite content and acceptance among civilized nations articulated in Sosa, thereby rendering it actionable in federal court under the ATCA. 124 S.Ct. at 2765 {785kb.pdf}. ¶

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”), Dec. 10, 1984, art. 1, S. Treaty Doc. No. 100-20 (1985), 1465 U.N.T.S. 85, defines torture with the required specificity: {p.4}

[A]ny act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Id. at art. 1. ¶

1465 U.N.T.S. 85 (Dec. 10 1984, June 26 1987) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 100-20; President transmitted: May 20 1988 (PPPUS, 1988-89) {SuDoc: AE 2.114:988-89/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Treaty Document No. 100-20 (May 23 1988) {SuDoc: Y 1.1/4:100-20, Serial Set: 13857, CIS: 88 S385-11}; Senate Hearing 101-718 (January 30 1990) {SuDoc: Y 4.F 76/2:S.Hrg.101-718, CIS: 90 S381-15, LCCN: 90601736}; Senate Executive Report No. 101-30 (August 30 1990) {SuDoc: Y 1.1/6:101-30, Serial Set: 13983, CIS: 90 S384-9}; Senate consent: Oct. 27 1990, 136 Cong. Rec. S17486-17492 (daily edition 136/150) {SuDoc: X/A.101/2:136/150, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Oct. 21 1994, effective Nov. 20 1994, 1830 U.N.T.S. 320, accord T.I.F. {202kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604}, contra, Nov. 10 1994, 22 C.F.R. § 95.1(a) {5kb.txt; 32kb.pdf, DL}CJHjr


Moreover, the international community, including the United States, overwhelmingly accepts that torture constitutes a violation of a fundamental norm, 6  as evidenced by, inter alia, torture’s status as a jus cogens or peremptory norm, from which no derogation is permitted. 7  See, e.g., Restatement (Third) Foreign Relations Law of the United States § 702 cmt. n (1987) (“Restatement”) {ISBN: 0314301380, LCCN: 86020665, WorldCat} (noting that encouraging, practicing, or condoning the act of torture is a jus cogens violation).

The United States government underscored its position on torture with the domestic enactment of the Torture Victim Protection Act of 1991, supra. The TVPA provides a specific definition for torture and affirms that torture violates a universal and obligatory norm of international law. 8  ¶

While the TVPA provides a cause of action, federal courts recognized claims of torture prior to its codification. See Filártiga, 630 F.2d at 883 ¶

(“Torture ... is defined as ‘any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as ... intimidating him or other persons.’”) ¶

(citation omitted). ¶

Additionally, federal courts continue to recognize torture as {p.5} an actionable claim post-codification. See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162, 185 (D. Mass. 1995) (stating that “torture ... has been more than adequately defined”); Wiwa v. Royal Dutch Petroleum Co., C.A. No. 96-8386, 2002 WL 319887, at *6 (S.D.N.Y. 2002) (listing specific elements of torture as (1) extreme pain, (2) by a government official, (3) to intimidate and punish). ¶

Thus, Sosa affirms what has been accepted judiciary practice for decades — that a domestic statute or a violation of the law of nations could be actionable in federal courts. 124 S.Ct. at 2739 {785kb.pdf}.

Furthermore, in Sosa, Justice Souter acknowledged the universal character of the prohibition on torture, likening it to the prohibitions on piracy and slave trading. 9  ¶

Like piracy, safe conducts, and the infringement upon the rights of ambassadors, torture is specifically defined and universally accepted as a violation of a fundamental norm, making it actionable under the ATCA. ¶

Because the Chagossians’ claim of torture meets the standard set forth in Sosa, the Court should accordingly hear this claim.

B.
Cruel, Inhuman, and Degrading Treatment Violates a Fundamental Norm of International Law Clearly Defined and Universally Accepted by Civilized Nations

Cruel, inhuman, and degrading treatment (“CIDT”) also constitutes a definable and universally accepted violation of international law. 10  ¶

United States courts often define CIDT in relation to torture, noting that while the harsh treatment associated with CIDT may not reach the level of torture, it nonetheless violates international law because it has the ¶

“intent and the effect of grossly humiliating and debasing plaintiffs.” ¶

Xuncax, 866 F. Supp. at 188; Wiwa, 2002 WL 319887, at *7-8. {p.6}

The widespread codification of the prohibition of CIDT in international instruments is evidence of its universal acceptance. ¶

As a party to the Torture Convention, discussed supra, the United States acknowledges “torture” and other acts considered “cruel, inhuman and degrading” as violations of international law. ¶

The International Covenant on Civil and Political Rights (“ICCPR”), which the United States signed and ratified, also expressly prohibits CIDT. 11  ¶


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999 U.N.T.S. 171 (Dec. 16 1966, March 23 1976) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-20; President transmitted: February 23 1978 (1978 PPPUS 395-396 {html}) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Executive Document No. 95/2-E (Feb. 23 1978) {SuDoc: Y 1.95/2:C-F/corr, Serial Set: 13205-?, CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 102-478 (Nov. 21 1991) {SuDoc: Y 4.F 76/2:S.Hrg.102-478, CIS: 92 S381-25, LCCN: 92191239, GPOCat, LL: paper, microfiche); Senate Executive Report No. 102-23 (March 24 1992) {63kb.txt, 302kb.pdf} {SuDoc: Y 1.1/6:102-23, Serial Set: 14102, CIS: 92 S384-1, GPOCat, LL: paper, microfiche}; Senate consent: April 2 1992, 138 Cong. Rec. S4781-4784 (daily edition 138/49) {SuDoc: X/A.102/2:138/49, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: June 8 1992, effective Sept. 8 1992, 1676 U.N.T.S. 543, accord T.I.F. {185kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


Both the Torture Convention and the ICCPR draw their language from Article 5 of the Universal Declaration of Human Rights, an instrument that has become customary law through the implementation of its principles in conventions, treaties and declarations. 12 

Legal scholars also emphasize the universal nature of the right to be free from CIDT, providing that any state that practices, encourages or condones “torture or other cruel, inhuman or degrading treatment or punishment” violates international law. 13  Restatement § 702 (stating that a state is in violation of “generally accepted international law” when it participates in “...(d) torture or other cruel, inhuman or degrading treatment or punishment...”; Aff. of Int’l Law Scholars (originally submitted to the court for Ortiz v. Gramajo, C.A. No. 91-11612, a case consolidated under Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995)), reprinted in Beth {p.7} Stephens & Michael Ratner, International Human Rights Litigation in U.S. Courts 331-37 (1996). ¶

Further, United States courts have accepted the standard reflected in the language of the Torture Convention and section 702 of the Restatement to confirm that CIDT violates an internationally recognized norm. See, e.g., Xuncax, 886 F. Supp. at 187 ¶

(“[A]ny act ... which is proscribed by the Constitution of the United States and by a cognizable principle of international law plainly falls within the rubric of ‘cruel, inhuman or degrading treatment’ and is actionable before this Court under [the ATCA].”); ¶

Wiwa, 2002 WL 319887, at *7 (S.D.N.Y. Feb. 28, 2002) (holding that “international prohibition against ‘cruel, inhuman, or degrading treatment’ is as universal as the proscriptions of torture, summary execution, and arbitrary arrest”).

Freedom from CIDT, like freedom from torture, is a universal right accepted by the international community and protected by U.S. courts. ¶

As a result, it has gained the status of a jus cogens, or a peremptory norm of international law, from which no derogation is permitted. Restatement § 702 cmt. n, (noting that encouraging, practicing, or condoning cruel, inhuman, or degrading treatment is a jus cogens violation). ¶

Because CIDT is a clearly definable and universally accepted violation of international law, the Chagossians’ CIDT claims against the U.S. government and individual federal Defendants are actionable in this Court under the ATCA.

C.
Genocide
Violates a Fundamental Norm of International Law Clearly Defined and Universally Accepted by Civilized Nations

Genocide clearly meets the threshold requirement the Court articulated in Sosa. ¶

Indeed, the Supreme Court in Sosa used genocide as an example of a norm sufficiently definite to support a cause of action, stating that there is ¶

“sufficient consensus ... that genocide ... violates international law.” ¶

124 S.Ct. at 2766 n.20 {785kb.pdf} (citing Kadic {72kb.html/txt, 100 kb rtf}, 70 F.3d 232, 239-41 (2d Cir. 1195)). {p.8}

The universal acceptance of genocide as a violation of a fundamental norm of international law is evidenced by the support of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) 78 U.N.T.S. 277, 9 I.L.M. 431 entered into force Jan. 12, 1951, 14  which defines genocide as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Id. at art. 7. ¶

78 U.N.T.S. 277 (Dec. 9 1948, Jan. 12 1951) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 81-15; President transmitted: June 16 1949 (PPPUS, 1949) {SuDoc: GS 4.113:949, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Hearing Jan. 23-25, Feb. 9, 1950 {SuDoc: Y 4.F 76/2:G 28/950, CIS: Group 3 (81) S933-10, LCCN: 50060591}; Senate Hearing April 24, 27, May 22, 1970 {SuDoc: Y 4.F 76/2:G 28/970, CIS: 70 S381-13, LCCN: 71608056}; Senate Hearing March 10 1971 {SuDoc: Y 4.F 76/2:G 28/971, CIS: 71 S381-11, LCCN: 76611849}; Senate Hearing May 24, 26 1977 {SuDoc: Y 4.F 76/2:G 28/977, CIS: 77 S381-41, LCCN: 77603283}; Senate Hearing December 3 1981 {SuDoc: Y 4.F 76/2:G 28/981, CIS: 82 S381-11, LCCN: 82601377}; Senate Hearing 98-962 (Sept. 12 1984) {SuDoc: Y 4.F 76/2:S.Hrg.98-962, CIS: 85 S381-4, LCCN: 84603643}; Senate Hearing 99-259 (March 5 1985) {SuDoc: Y 4.F 76/2:S.Hrg.99-259, CIS: 86 S381-2, LCCN: 85603348}; Senate Executive Report No. 99-2 (July 18 1985) {SuDoc: Y 1.1/6:99-2, Serial Set: 13626, CIS: 85 S384-1}, reprinted in 28 I.L.M. 760 (1989) {Lexis, WestLaw}; Senate consent: February 19 1986, 132 Cong. Rec. S1355-1401 (daily edition 132/??) {SuDoc: X/A.99/2:132/??, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Nov. 25 1988, effective Feb. 23 1989, 1518 U.N.T.S. 339, accord T.I.F. {179kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


Under Article I of the Genocide Convention, the ¶

“[c]ontracting Parties confirm[ed] that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” ¶

Id. ¶

Genocide’s status as a violation of a jus cogens or peremptory norm further demonstrates its universal and obligatory status. See, e.g., Restatement § 702 cmt. n (noting that encouraging, practicing, or condoning the act of genocide is a jus cogens violation).

Following the Genocide Convention, Congress reinforced the United States’ commitment to prevent and punish genocide through its passage of the Genocide Convention Implementation Act of 1987. 18 U.S.C. §§ 1091-93 (2000) (“Proxmire Act”) (declaring that punishment must be brought against any United States national who personally subjects, attempts to subject, or directly and publicly incites another to subject, a national, ethnic, racial or religious group to “conditions of life that are intended to cause the physical destruction of the {p.9} group in whole or in part”). ¶

Since the passage of the Act, federal courts have held that genocide constitutes a violation of international law actionable under the ATCA. See, e.g., Kadic {72kb.html/txt, 100 kb rtf}, 70 F.3d at 238 (holding genocide as a violation of international law); Bao Ge v. Li Peng, 201 F. Supp. 2d 14, 20 (D.D.C. 2000) (adopting and holding that subject-matter jurisdiction under the ATCA applies to violations of international law such as genocide); Presbyterian Church of Sudan v. Talisman Energy, Inc. {230 kb doc, 1088kb.pdf, menu}, 244 F. Supp. 2d 289, 305 (S.D.N.Y. 2003) (“It is not disputed that such acts [as genocide] violate universally recognized norms of international law.”). ¶

The Supreme Court in Sosa noted the clear definition and universal acceptance of genocide as a violation of international law that should be deemed actionable when brought before a federal court. 124 S.Ct. at 2766 n.20 {785kb.pdf}.

Thus, the Supreme Court’s ruling in Sosa directly addresses the Chagossians claims in previous pleadings; the alleged genocidal acts of the United States government and the individual federal Defendants against the Chagossian ethnic, racial, and national community are actionable under the ATCA.

D.
Systematic Racial Discrimination Violates a Fundamental Norm of International Law Clearly Defined and Universally Accepted by Civilized Nations

The prohibition on systematic racial discrimination constitutes a clearly defined and universally accepted norm of international law. ¶

The International Convention on the Elimination of all Forms of Racial Discrimination (“Racial Discrimination Convention”), Mar. 7, 1966, 660 U.N.T.S. 195, 5 I.L.M. 350, entered into force on January 4, 1969, is the second most widely ratified international human rights instrument. 15  ¶

The Convention, signed and ratified by the United States, 16  clearly defines racial discrimination as: {p.10} ¶

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Id. at art. 1.1.

660 U.N.T.S. 195 (March 7 1966, Jan. 4 1969) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status (MTDSG) {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 95-18; President transmitted: February 23 1978 (1978 PPPUS 395-396 {html}) {SuDoc: GS 4.113:978/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}; Senate Executive Document No. 95/2-C (Feb. 23 1978) {SuDoc: Y 1.95/2:C-F/corr, Serial Set: 13205-?, CIS: 78 S385-3, LCCN: 78601565, GPOCat, LL: paper, UC, WorldCat}; Senate Hearing 103-659 (May 11 1994) {SuDoc: Y 4.F 76/2:S.Hrg.103-659, CIS: 94 S381-23, LCCN: 94231890); Senate Executive Report No. 103-29 (June 2 1994) {SuDoc: Y 1.1/6:103-29, Serial Set: 14230, CIS: 94 S384-3}; Senate consent: June 24 1994, 140 Cong. Rec. S7634 (daily edition 140/82) {9kb.txt} {SuDoc: X/A.103/2:140/82, ISSN: 0363-7239, LCCN: 80646573, GPOCat, LL: paper, microfiche, WorldCat}; U.S. ratified: Oct. 21 1994, effective Nov. 20 1994, 1830 U.N.T.S. 284, accord T.I.F. {134kb.pdf} {SuDoc: S 9.14:2004, ISSN: 0083-0194, LCCN: 56061604, DL}CJHjr


With the Racial Discrimination Convention, the international community directly addressed what had been previously recognized and referenced in numerous treaties, conventions and declarations; civilized nations deem racial discrimination a violation of international law. 17  ¶

The international community reiterated this principle in two international covenants written just months after the Racial Discrimination Convention, the ICCPR, art. 2.1 ¶

(“Each State Party ... undertakes to respect ... the rights recognized in the present Covenant, 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” and “[a]ll persons are equal before the law and are entitled without discrimination to equal protection before the law.”), ¶

and the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art 2.2, 993 U.N.T.S. 3, 21 I.L.M. 925 {U.S. Senate Treaty No. 95-19, President transmitted February 23 1978, status} ¶

(“The State Parties to the present Covenant undertake to guarantee that the rights {p.11} enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”). 18  ¶

The international community further addressed racial discrimination in its most extreme form in the International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, art. 2, 1015 U.N.T.S. 243, 13 I.L.M. 50 {status} 19 .

In United States practice, federal courts consider systematic racial discrimination a definable and accepted international norm actionable in federal courts. 20  The Restatement provides that ¶

“[a] state violates international law if, as a matter of state policy, it practices, encourages, or condones ... (f) systematic racial discrimination.” ¶

Restatement § 702. ¶

Federal courts have cited the Restatement and recognized that systematic racial discrimination constitutes a jus cogens violation. See Sarei v. Rio Tinto, 221 F. Supp. 2d 1116, 1152-53 (C.D. Cal. 2002) {602kb.pdf} (“Clearly, a claim under the ATCA may be based on the violation of a jus cogens norm such as racial discrimination.”); see also Comm. of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988) (comparing jus cogens violations in the Restatement, including racial discrimination, to disregarding an International Court of Justice judgment and {p.12} holding that the latter does not constitute a jus cogens violation); Kadic {72kb.html/txt, 100 kb rtf}, 70 F.3d at 240; Hilao v. Marcos {78kb.html}, 25 F.3d 1467, 1475 (9th Cir. 1994).

Contrary to widely accepted international law, the United States government and individual federal Defendants, armed with the knowledge of the indigenous status of the Chagossians, systematically discriminated against them based on race and ethnicity to clear the Archipelago of people and themselves of accountability. ¶

Moreover, Defendants systematically denied and continue to deny employment to any Chagossian on Diego Garcia based on race and ethnicity. Compl. at ¶ 74. ¶

An examination of treaty law, international customary law, and U.S. practice demonstrates that Defendants’ conduct alleged in the Complaint violates a clearly defined and universally accepted norm of international law. ¶

As such, Plaintiffs’ systematic racial discrimination claim is actionable in federal courts under the ATCA.

E.
Forced Relocation Violates a Fundamental Norm of International Law Clearly Defined and Universally Accepted by Civilized Nations

The forced relocation of people is a well defined and universal offense. ¶

Consistent with the Supreme Court’s holding in Sosa, forced relocation invokes the applicability of the ATCA for Plaintiffs. See, e.g., Presbyterian Church of Sudan {230 kb doc, 1088kb.pdf, menu}, 244 F. Supp. 2d at 325 (holding that plaintiffs’ ATCA claim, where plaintiffs were forcibly removed, is supported by other federal court decisions). ¶

Forced relocation violates international law where individuals are displaced from their homes and “minimal procedural guarantees are not provided prior to relocation.” Declaration of International Law Scholars on Forced Relocation (“Forced Relocation Declaration”), Sept. 18, 2000, at 2, Attach. 6 of Pls.’ Mot. Prelim. Inj. (Feb. 2, 2002). ¶

Human rights may be further violated beyond the act of forced removal when there is a negative impact on the enjoyment of other human rights as a result of the forced removal. Id. {p.13}

Supported by prevalent international authority, forced relocation is a violation of international customary law and, therefore, a violation of the law of nations under the ATCA. See Cyprus v. Turkey, 4 E.H.R.R. 482 (1982) (determining that forcibly evicting people from their home and refusing to allow them to return, violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms); see also Maria Majia v. Guatemala, Case 10.533, Report No. 32/96, Inter-Am. C.H.R., OAE/Ser.L/V/II/95 Doc. 7 rev. at 370 (1997) (holding that the forcible evacuation of 40 people from their homes and the refusal to allow them to return, violated the American Convention). See generally Forced Evictions, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. E/CN.4/SUB.2/RES/1997/6 (1997) (asserting that forced relocation can grossly violate human rights).

The Restatement also recognizes that the rights violated by forced relocation are fundamental human rights and that a violation of these rights constitute a violation of international law. 21  Restatement § 702. ¶

In addition, the United States government acknowledged to the United Nations that U.S. laws recognize and protect the rights provided for in the ICCPR, 22  a codification of the Universal Declaration on Human Rights, which advocates the belief that people have a right to remain in their country. 23  ¶

Moreover, U.S. foreign policy statements also recognize forced relocation as a violation of international law. 24  {p.14}

Blackstone noted ¶

“[o]ccupancy is the thing by which the title was in fact originally gained; every man seizing such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.” ¶

Mabo v. Queensland [No 2] 175 CLR 1, at 45 (Queensl. 1992) (citation omitted) (emphasis added). ¶

In our case, the Chagos Archipelago was not uninhabited land. Rather, an entire culture had evolved and lived on the Archipelago. ¶

Notwithstanding, and contrary to acceptable international norms as espoused by Blackstone, the U.S. government and individual federal Defendants forcibly removed Plaintiffs and have since prohibited their return. ¶

Because the United States government and individual federal Defendants employed such tactics in absence of any reasonable procedural safeguards, the forced relocation of Plaintiffs amounts to a violation of international law. ¶

Indeed, an examination of international customary law and U.S. foreign policy statements demonstrate that Defendants’ conduct violates international law, consequently falling within the auspices of the ATCA.

IV.
The Text of the ATCA and Supreme Court Precedent Compel This Court to Recognize Plaintiffs’ Claims as Actionable

The Supreme Court in Sosa held that basic norms of international law are actionable in federal courts as the First Congress intended when it drafted the Judiciary Act in 1789. ¶

{Judiciary Act of 1789, § 9 (U.S. Congress 1-1, Sept. 24 1789), 1 Stat. 73-93, at 77CJHjr}.


The ATCA provides that ¶

“the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” ¶

28 U.S.C. § 1350 (emphasis added). ¶

In Connecticut National Bank v. Germain, the Supreme Court stated that judicial interpretation of statutory language must ¶

“presume that a legislature says in a statute what it means and means in a statute what it says there.” ¶

112 S.Ct. 1146, 1149 (1992) {503 U.S. 249, 253-254}. ¶

The same Court in Sosa held that the ATCA bestows federal courts with the power {p.15} intended by the Framers: to apply rules of international law at the behest of aliens. That Congress chose to enlist the federal courts is a grant of power that the courts should not lightly refuse to apply.

In accordance with the text of the ATCA and Supreme Court precedent, this Court must recognize as actionable each claim Plaintiffs present in this case under the ATCA.

V.
Conclusion

The Supreme Court’s decision in Sosa establishes that U.S. federal courts have the power to hold Defendants in this case accountable for forcibly removing the Chagossians from their homeland and violating their internationally recognized rights. ¶

As required by Sosa, the Plaintiffs’ claims of torture, CIDT, genocide, systematic racial discrimination, and forced relocation are clearly defined and universally accepted violations of international law. ¶

Accordingly, this Court should hear the Chagossians’ claims.

Dated: October 29, 2004

Respectfully Submitted,


{Signature}

Michael E. Tigar
D.C. Bar No. 103762
Professor, American University
Washington College of Law
4801 Massachusetts Ave., N.W.
Washington, D.C. 20016
(202) 274-4088

Attorney for Plaintiffs {p.16}

______________________

Certificate of Service

I, Debra Spinelli-Hays, hereby certify that a copy of Plaintiffs’ Supplemental Memorandum in Response to This Court’s Order Dated October 19, 2004 in Bancoult, et al., v. Robert S. Mcnamara, et al., Case No. 01-CV-02629 (RMU), was served electronically and via facsimile, on this 29 day of October 2004 to Defendants’ counsel as follows:

Richard Montague
Senior Trial Attorney
Torts Branch Civil Division
U.S. Department of Justice
1425 New York Avenue, Suite 8122
Washington, DC 20005


Elaine Marzetta Lacey
U.S. Department of Justice
Torts Branch,
Civil Division
Box 888
Washington, DC 20044


Attorney for Defendants


{Signature}

Debra Spinelli-Hays

Footnotes

Each footnote appears entirely on the same page with its text reference, except where an embedded page reference denotes a carryover to the foot of the next page (n.5, n.15, n.24).  CJHjr


 1  “The term ‘law of nations’ [in the ATCA] is synonymous with international law. ... it refers to customary international law (as opposed to [merely] codified international law which is found in treaties).” Presbyterian Church of Sudan v. Talisman Energy, Inc. {230 kb doc, 1088kb.pdf, menu}, 244 F. Supp. 2d 289, 303 n.12 (S.D.N.Y. 2003).

 2  When Congress drafted the ATCA, all nations defined piracy as “robbery upon the sea.” United States v. Smith, 18 U.S. 153, 162 (1820). The international community universally viewed piracy as “an offense against the universal law of society, a pirate being deemed an enemy of the human race.” Id.

 3  Infringement on the rights of ambassadors concerns torts or trespasses committed against foreign diplomats and ministers for which no judicial remedy existed in the United States. Blackstone counseled that the United States must adopt international law ¶

“to preempt complaints by foreign sovereigns.” ¶

William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 489 (1986). The international community recognized that ¶

“[t]he person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the Sovereign he represents, but also hurts the common safety and well being of nations; he is guilty of a crime against the whole world.” ¶

Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 116 (1784) {altlaw, lexisone}. The Framers acknowledged that such conduct, ¶

“if not adequately redressed could rise to an issue of war.” ¶

Sosa, 124 S.Ct. at 2756 {785kb.pdf}.

 4  Violation of safe conducts refers to the acceptance by civilized nations that people authorized to travel may do so free of danger. ¶

Initially established among nations for the protection of merchants traveling to and from foreign lands for business, Emily Kadens, Note, Order Within Law, Variety Within Custom: The Character of the Medieval Merchant Law, 5 Chi. J. Int’l L. 39, 65 n.40 (2004), the protections guaranteed by safe conduct have since extended to any individual legally in a foreign land. See Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (“Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights.”).

 5  The Court in Sosa held that the arbitrary detention claim, as alleged by the Petitioner, failed to meet the clearly defined requirement. 124 S.Ct. at 2768 {785kb.pdf}. Thus, the claim, as defined by the Petitioner, did not constitute a violation actionable under the ATCA. Id. ¶

However, prolonged arbitrary detention, a claim not before the Court, does constitute a clearly defined and universally recognized violation of international law, as evidenced by its status as a {p.3} violation of a jus cogens norm. Restatement (Third) Foreign Relations Law of the United States § 702 cmt. n (1987) § 702 cmt. n (1987) (“Restatement”).

 6  There are currently 136 parties and 74 signatories to the Convention. United Nations Status of the Ratification Against Torture, available at http://www.ohchr.org/english/law/cat-ratify.htm (last visited Oct. 29, 2004). The United States ratified the Convention in 1988. Id. {Signed: April 18 1988, ratified: Oct. 21 1994.  CJHjr}

The source of the UNHCHR webpage is this page (status: Torture Convention) of the online edition of Multilateral Treaties Deposited with the Secretary-General (United Nations, Office of Legal Affairs, New York City) {U.N. Doc: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 83646490}CJHjr


 7  Vienna Convention on the Law of Treaties {458kb.pdf}, May 23, 1969, art. 53, 1155 U.N.T.S. 331, {344,} 8 I.L.M. 679 {U.S. Senate Treaty Number 92-12, President transmitted: Nov. 22 1971, status}.

 8  There are two differences between the Torture Convention and the TVPA definitions of torture. ¶

First, the TVPA requires the victim to be “in the offender’s custody or physical control.” Torture Victim Protection Act § 3(b)(1). ¶

Second, the definition of mental suffering in the TVPA is more limited in scope. ¶

However, even though the TVPA altered the Convention’s definition of torture, some courts still abide by the Convention definition. See, e.g., Wiwa v. Royal Dutch Petroleum Co., C.A. No. 96-8386, 2002 WL 319887 (S.D.N.Y 2002).

 9  “For purposes of civil liability, the torturer has become — like the pirate and slave trader before him — hostis humani generis, an enemy of all mankind.” 124 S.Ct. at 2766 {785kb.pdf} (quoting Filártiga, 630 F.2d at 890).

 10  Restatement § 702 (d), cmt. g (1986); Torture Convention {U.S. Senate Treaty No. 100-20, cited above}, Dec. 10, 1984, art. 1, S. Treaty Doc. No. 100-20 (1985), 1465 U.N.T.S. 85; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Declaration”), 1975, G. A. Res. 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N. Doc. A/1034.

 11  See International Covenant on Civil and Political Rights {U.S. Senate Treaty No. 95-20, cited above}, Dec. 16, 1966, art. 7, 999 U.N.T.S. 171, 6 I.L.M. 360 (1967) (hereinafter ICCPR) (providing that ¶

“[n]o one shall be subjected to cruel, inhuman or degrading treatment or punishment”). ¶

The United States signed the ICCPR on October 5, 1977, and ratified the same on September 8, 1992. Status of Ratifications of the Principal International Human Rights Treaties, available at http://www.unhchr.ch/pdf/report.pdf (last visited Oct. 29, 2004).

And see this page (status: ICCPR) of the online edition of Multilateral Treaties Deposited with the Secretary-General (United Nations, Office of Legal Affairs, New York City) {U.N. Doc: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 83646490}CJHjr


 12  See Torture Declaration, G.A. Res. 3452, 30 U.N. GAOR Supp. No. 34 at art.2, 91, U.N. Doc. A/1034 (1975) ¶

(“Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned.”); ¶

European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 3, 213 U.N.T.S. 221, 224 ¶

(“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”); ¶

Convention to Prevent and Punish Torture, Dec. 9, 1985, 25 I.L.M. 519 ¶

(“Reaffirming that all acts of torture or any other cruel, inhuman, or degrading treatment or punishment constitute an offense against human dignity and a denial of the principles set forth in the Charter of the Organization of American States and in the Charter of the United Nations and are violations of the fundamental human rights and freedoms proclaimed in the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights.”).

 13  Restatement § 702 provides: ¶

“A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide; (b) slavery or slave trade; (c) the 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; or (g) a consistent pattern of gross violation of internationally recognized human rights.”

 14  There are currently 136 parties and 41 signatories to the Convention. United Nations Treaty Collection: Convention on the Prevention and Punishment of the Crime of Genocide, available at http://preventgenocide.org/law/convention/UNTreatyCollection-GenocideConventionStatusReport.htm (last visited Oct. 29, 2004). The United States ratified the Convention in 1988. Id.

And see this page (status: Genocide Convention) of the online edition of Multilateral Treaties Deposited with the Secretary-General (United Nations, Office of Legal Affairs, New York City) {U.N. Doc: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 83646490}CJHjr


 15  See Michael O'Flaherty, Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, in Indigenous Peoples, the United Nations and Human Rights 162-63 (Sarah Pritchard, ed., 1998) (stating that 150 States ratified the Convention as of 1996); see also Press Release, {p.10} United Nations, Women’s Anti-Discrimination Committee Holds Exceptional Session in New York from 5 to 23 August 2002 (stating that Comoros became party number 170 to the convention), at http://www.unhchr.ch/huricane/huricane.nsf/0/F8142898B4D9F50EC1256C09002A9257?opendocument (last visited Oct. 29, 2004). The International Convention on the Rights of the Child is the most widely ratified international human rights treaty. O'Flaherty, at 162-63.

And see this page (status: Racial Discrimination Convention) of the online edition of Multilateral Treaties Deposited with the Secretary-General (United Nations, Office of Legal Affairs, New York City) {U.N. Doc: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 83646490}CJHjr


 16  The United States signed the Racial Discrimination Convention on September 28, 1966 and the same entered into force in the United States on November 20, 1994. 660 U.N.T.S. 195, 5 I.L.M. 350 {U.S. Senate Treaty Number 95-18, cited above}.

 17  See Genocide Convention, Dec. 9, 1948, 78 U.N.T.S. 277, 9 I.L.M. 431 {U.S. Senate Treaty Number 81-15, cited above} (defining genocide as ¶

“[a]cts committed with intent to destroy, in whole or in part, a national, ethnicnal, racial, or religious group”); ¶

Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. doc A/810, at 72-73 (1948) ¶

(“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” and “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 such discrimination.”); ¶

see also U.N. Charter, art. 1, para. 4 (listing as a purpose of the United Nations ¶

“[t]o achieve international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”). ¶

The Charter has specific relevancy to the instant case as the United States intentionally acted to avoid its obligations under the United Nations Charter.

 18  The United States signed the Economic, Social and Cultural Rights Covenant on October 5, 1977 but never ratified it {U.S. Senate Treaty No. 95-19, President transmitted February 23 1978}. Status of Ratifications of the Principal International Human Rights Treaties, available at http://www.unhchr.ch/pdf/report.pdf (last visited Oct. 29, 2004).

And see this page (status: ESCRC) of the online edition of Multilateral Treaties Deposited with the Secretary-General (United Nations, Office of Legal Affairs, New York City) {U.N. Doc: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 83646490}CJHjr


 19  The International Convention on the Suppression and Punishment of the Crime of Apartheid prohibits ¶

“(a) denial to a member or members of a racial group or groups the right to life and liberty of persons; (b) deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part; (c) any legislative measures or other measures calculated to prevent a racial group or groups from participation in political, social, economic, cultural life of the country; [and] (d) any measures, including legislative measures, designed to divide the population along racial lines.” ¶

Nov. 30, 1973, art. 2, 1015 U.N.T.S. 243, 13 I.L.M. 50.

 20  In addition to the definition in the Racial Discrimination Convention, U.S. courts require proof of 1) state action and 2) systematic discrimination. See, e.g., Sarei v. Rio Tinto, 221 F. Supp. 2d 1116, 1187 (C.D. Cal. 2002) {602kb.pdf} (finding that the defendant was not a state actor for purposes of the racial discrimination claim); see also Tachiona v. Mugabe, 234 F. Supp. 2d 401, 427 (S.D.N.Y. 2002) {487kb.html} (comparing racial discrimination as an international norm with systematic racial discrimination, which requires state action); Macharia v. United States, 238 F. Supp. 2d 13, 30-31 (D.D.C. 2002) (dismissing the racial discrimination claim for failure to demonstrate the systematic nature of the alleged discrimination); Restatement § 702(g) (requiring state action for systematic racial discrimination).

 21  Justice Rehnquist expressed his sentiment concerning forced relocation, stating that ¶

“[i]t pushes these propositions to an extreme to say that a sizable geographical area, including the residences of many citizens, may be declared off-limits and the residents required to move. It pushes it to an even greater extreme to say that such persons may be required not only to leave their homes but also to report to and remain [at a distant location].” ¶

Forced Relocation Declaration at 29 (citing William H. Rehnquist, All the Laws But One 206 (1998) {LCCN: 98012641}).

 22  Senate Committee on Foreign Relations: Report on the International Covenant of Civil and Political Rights, 31 I.L.M. 645 (1992) {10kb.txt, 302kb.pdf} {Lexis, WestLaw} {U.S. Congress 102-2, Senate Executive Report 102-23, Serial Set 14102, U.S. Senate Treaty No. 95-20; Senate adoption: 138 Cong. Rec. S4781-4784 (U.S. Congress 102-2, Daily Edition, April 2 1992)).

 23  Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. doc A/810, arts. 1, 3, 9, 12, 13 ((Dec. 10, 1948) (noting “[e]veryone has the right to return to his country”).

 24  See Forced Relocation Declaration at 30-31 (citing U.S. Dep’t of Labor, Bureau of International Labor Affairs, Report on Labor Practices in Burma (1998), available at http://www.dol.gov/ILAB/media/reports/ofr/burma1998/main.htm (last visited Oct. 29, 2004); U.S. Dep’t of State, country reports on Human Rights Practices 816, 819, 1984, 1985 (1999) (elaborating that U.S. policies have consistently recognized forced relocation as a violation of international customary law), available at http://www.state.gov/www/global/human_rights/1999_hrp_report/ {p.14} burma.html (last visited Oct. 29, 2004).

 

Source: https://ecf.dcd.uscourts.gov/ cgi-bin/ show_case_doc? 108,15820,,, (requires a PACER account) {157 kb pdf}. Omitted: Table of Contents and Table of Authorities (pages i-v).

By CJHjr: Converted to text (OCR: FineReader 7.0), formatted (xhtml/css), “Filed” date stamp imagined (from previous documents), links, text {in braces}, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol: ¶ .

This case: Bancoult v. McNamara, complaint filed, Dec. 20 2001, refused to adjudicate, 370 F.Supp.2d 1 (D.D.C., No. 01-CV-2629, Dec. 21 2004), appeal docketed, Feb. 22 2005, affirmed refusal to adjudicate, 445 F.3d 427 {justia, altlaw, 147kb.pdf, copy} (D.C. Cir., No. 05-5049, April 21 2006), petitions to rehear and en banc filed, June 5 2006, denied, July 11 2006, petition for certiorari docketed, Oct. 11 2006, refused to review refusal to adjudicate, certiorari denied, 549 U.S. — (U.S., No. 06-502, Jan. 16 2007).

Commentary: Escaping justice: Why the United States has a free hand to wage crimes and torts against foreigners. Are foreigners entitled to an eye-for-an-eye? Diego Garcia: The Criminal Question Doctrine and Bancoult v. McNamara.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Nov. 4 2004. Updated Jan. 20 2005.

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