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Full-text: October 28 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

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

Supplemental Memorandum in Response to this Court’s Order of September 30, 2002

In response to the questions in this Court’s Order dated September 30, 2002, Plaintiffs submit the following supplemental memorandum. Plaintiffs address in turn the specific questions posed by the Court.

I.
Customary International Law Is the Basis for Each of Plaintiffs’ Claims Against the United States and Plaintiffs Have Met All of the Jurisdictional Requirements Under the Alien Tort Claims Act

Customary international law is the basis for Plaintiffs’ claims against the United States for forced relocation, genocide, torture, racial discrimination, and cruel, inhuman, and degrading treatment. Each claim constitutes a violation of a well-established norm of customary international law and is actionable under the Alien Tort Claims Act (“ATCA”).

Plaintiffs’ claim for forced relocation is based on customary international law, as evidenced by the writings of jurists, international treaties, and the laws of the United States. ¶

See generally Decl. of Int’l Law Scholars on Forced Relocation {90 kb}, Attach. 6 of Pls.’ Mot. Prelim. Inj. (2000) (providing an extensive review of the writings of jurists, international and regional {p.2} treaties, and U.S. law and practice related to forced relocation); see also Pls.’ Mot. Prelim. Inj. Part III.A. ¶

The continued forced relocation of Plaintiffs encompasses several universally recognized human rights norms, 1  and a consistent violation of such norms in itself constitutes a violation of customary international law. ¶

Restatement (Third) Foreign Relations Law of the United States § 702(g) & cmt. m (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}.

Forced relocation of an indigenous population is considered a particularly egregious violation 2  and when such relocation results in violations of jus cogens norms, 3  it should itself be considered a jus cogens violation. ¶

Plaintiffs’ second, third, and fourth claims, for genocide, 4  torture, 5  and racial {p.3} discrimination, 6  respectively, are all based on customary international law and have acquired the status of jus cogens norms. ¶

Restatement (Third) Foreign Relations Law of the United States § 702 & cmt. n {ISBN: 0314301380, LCCN: 86020665, WorldCat}. ¶

Plaintiffs’ claim, for cruel, inhuman and degrading treatment, also is based on customary international law. 7 

Plaintiffs have met the jurisdictional requirements associated with each of their claims. The Alien Tort Claims Act (“ATCA”) provides federal subject-matter jurisdiction for claims brought “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 (2000). Thus, jurisdiction exists under the ATCA when (1) an alien brings a suit, (2) alleging a tort that (3) violates the law of nations. 8  ¶

See, e.g., Kadic v. Karadzic {72kb.html/txt, 100 kb rtf}, 70 F.3d 232, 238 (2d Cir. 1995) (citations omitted). ¶

Plaintiffs’ suit satisfies these {p.4} requirements. Plaintiffs are aliens, most of whom live in Mauritius and the Seychelles. See Compl. ¶¶ 23, 30. Moreover, Plaintiffs’ claims for forced relocation, genocide, torture, racial discrimination, and cruel, inhuman, and degrading treatment are torts, at a minimum violative of customary international law, and, in some cases, jus cogens norms. See supra notes 1-7 and accompanying text. Accordingly, this Court has subject matter jurisdiction over Plaintiffs’ claims.

In addition to providing a jurisdictional basis for Plaintiffs’ claims, the ATCA also supplies the basis for Plaintiffs’ cause of action. The vast majority of courts considering the issue have held that the ATCA provides a cause of action for torts committed in violation of the laws of nations. 9  ¶

Indeed, nearly twenty years ago Judge Edwards in this circuit forged this legal proposition by concluding that the ATCA “does not require that the action ‘arise under’ the law of nations, but only mandates a ‘violation of the law of nations’ in order to create a cause of action.” ¶

Tel-Oren, 726 F.2d 774, 779 (D.C. Cir. 1984) (Edwards, J., concurring). ¶

Judge Edwards’ opinion, finding that the ATCA provides a cause of action for violations of the law of nations, has been widely praised and relied upon by courts holding the same 10  and is the view that should be conclusively adopted by this Court today.

II.
Plaintiffs Seek Declaratory, Injunctive, and Restitutionary Relief {p.5}

With respect to Plaintiffs’ claim for forced relocation, Plaintiffs seek (1) a declaratory judgment finding that Plaintiffs’ continued forced relocation is illegal and violates their fundamental human rights; (2) injunctive relief directing, among other things: an immediate return to the entire Chagos Archipelago and limited commercial access to the airstrip on Diego Garcia; and (3) an injunctive disgorgement order requiring the United States to make restitution for unjust enrichment in an amount to be determined at trial, but in excess of $250,000 per class member. 11  ¶

For Plaintiffs’ genocide and torture claims, Plaintiffs seek (1) a declaratory judgment condemning the genocide and torture perpetrated by Defendant against Plaintiffs as violations of fundamental human rights; (2) injunctive relief seeking the same relief as for forced relocation; {p.6} and (3) monetary relief in an amount to be determined at trial, but in excess of $500,000 for each claim and per class member. ¶

Plaintiffs seek relief for their claim of racial discrimination in the form of (1) a declaratory judgment finding that the racial discrimination Plaintiffs have suffered is illegal and violates their fundamental human rights; (2) injunctive relief seeking equal access to the Chagos Archipelago and to employment on Diego Garcia; and (3) monetary relief in an amount to be determined at trial, but in excess of $250,000 per class member. ¶

For Plaintiffs’ claim of cruel, inhuman, and degrading treatment, Plaintiffs seek (1) a declaratory judgment finding that the cruel, inhuman, and degrading treatment Plaintiffs have suffered as a result of their forced relocation was illegal and violated their fundamental human rights and (2) injunctive relief seeking the same relief as for forced relocation.

III.
The Administrative Procedure Act Provides a Waiver of Sovereign Immunity for Plaintiffs’ Claims Seeking Declaratory, Injunctive, and Restitutionary Relief and Furthermore Defendant Does Not Enjoy Sovereign Immunity for Plaintiffs’ Jus Cogens Claims

A.  The Administrative Procedure Act Provides a Waiver of Sovereign Immunity for the Injunctive Relief Sought by Plaintiffs

Since 1976, the Administrative Procedure Act (“APA”) has provided a specific waiver of the United States’ sovereign immunity for suits “seeking relief other than money damages.” APA, 5 U.S.C. § 702 (2000). ¶

Plaintiffs’ action seeks, in part, injunctive and declaratory relief. See Compl. ¶ 104-106; see also supra Part II (correlating relief to claims). ¶

Not only is this waiver well-established, 12  but Plaintiffs’ prayer for relief clearly falls within it. ¶

See Clark v. Library of Congress, 750 F.2d 89, 102 (holding § 702 waives sovereign immunity for suits seeking relief beyond money); Dronenburg v. Zech, 741 F.2d 1388, 1389 (D.C. Cir. 1984) {p.7} (holding that § 702 was intended to waive sovereign immunity of the U.S. in suits for injunctive relief).

Plaintiffs recognize that a violation of another operative part of domestic law is a prerequisite to invoking judicial review under the APA, including application of § 702’s waiver of sovereign immunity. ¶

Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988) (“the APA does not grant judicial review of agencies’ compliance with a legal norm that is not otherwise an operative part of domestic law”) (citing Kenneth Davis, Administrative Law Treatise § 28.1, at 256 (2d ed. 1984)). ¶

Plaintiffs maintain that all of their customary international law claims — whether for declaratory, injunctive, or restitutionary relief — qualify for a waiver of sovereign immunity under the APA because customary international law is an operative part of domestic law. ¶

See Jordan J. Paust, International Law as Law of the United States 7 (1996) (providing extensive overview of operative nature of customary international law in the United States and stating “customary international law has been directly incorporable, at least for civil sanctions and jurisdictional purposes, without the need for some other statutory basis”) (citations omitted). ¶

Indeed, customary international law is the federal substantive law governing this dispute. More than a century ago, the Supreme Court held that “[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.” The Paquete Habana, 175 U.S. 677, 700 (1900). ¶

Moreover, the “appropriate jurisdiction” to which the Supreme Court refers in Paquete Habana is itself determined by federal statute, further demonstrating the operative role of customary international law within domestic law. ¶

See ATCA, 28 U.S.C. § 1350 (2000) (conferring on the district courts jurisdiction over civil actions by aliens for torts violating the law of nations). ¶

Jus cogens norms, in particular, play an ever-increasing and crucial role in substantive federal law. {p.8} ¶

See In re Estate of Ferdinand E. Marcos Litigation (Hilao v. Marcos) {78kb.html}, 25 F.3d 1467, 1473 (9th Cir. 1994) (finding jus cogens norms respecting torture provide substantive federal law), cert. denied, 513 U.S. 1126 (1995); In re Estate of Ferdinand E. Marcos Litigation (Trajano v. Marcos) {54kb.html}, 978 F.2d 493, 500 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993) (concluding “the district court did not err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture”). ¶

Accordingly, ¶

In re Estate of Ferdinand E. Marcos {54kb.html}, 978 F.2d at 502, and provides a basis for review under the APA.

B.  The Administrative Procedure Act Waives the United States’ Sovereign Immunity for Plaintiffs’ Claim for Restitution Through an Injunctive Disgorgement Order

Section 10(a) of the Administrative Procedure Act waives the sovereign immunity of the United States for any suit “seeking relief other than money damages.” 5 U.S.C. § 702 (2000). 13  ¶

Because Plaintiffs’ forced relocation claim against the United States seeks an injunctive disgorgement order, and not “money damages,” § 702 waives the Defendant’s sovereign immunity for Plaintiffs’ claims.

Consistent with the historical distinction between substitute and specific relief, Congress drafted § 702 to permit actions against the United States seeking remedies other than “substitute” relief. ¶

Bowen v. Massachusetts, 487 U.S. 879, 895 (1988); Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (stating that Bowen’s interpretation of § 702 hinged on the distinction between specific and substitute relief). ¶

Although “money damages” historically refer to a sum of money used to substitute for a suffered loss, money also may constitute a specific remedy, which is not a substitute at all, “‘but attempt[s] to give the plaintiff the very thing to which he was entitled.’” Blue Fox, 525 U.S. at 262 (quoting Bowen, 487 U.S. at 895) (citation omitted). {p.9} ¶

Accordingly, the Supreme Court has found that money damages — as a substitutionary remedy — do not fall within § 702’s waiver of sovereign immunity. ¶

Cf. id. at 262-63 (holding that a subcontractor’s equitable lien on government funds was barred by sovereign immunity because the goal of the equitable lien was to seize money as compensation for the loss suffered as a result of the prime contractor’s default on payments). ¶

Conversely, those monetary remedies that give the plaintiff “the very thing to which he was entitled” do fall within § 702’s waiver. ¶

Bowen, 487 U.S. at 900 (holding that § 702 waived the United States’ sovereign immunity in a State’s suit for Medicaid reimbursement because the action sought funds mandated by statute, and not compensation for the loss suffered as a result of the federal government’s initial denial of funds).

Plaintiffs’ prayer for a disgorgement order requiring restitution on the theory of unjust enrichment is not substitutionary in nature, and, thus, is permitted by § 702. ¶

First, the larger context of general restitutionary remedies is non-substitutionary in nature. By virtue of its assessment of the undeserved benefit that has accrued to the defendant, restitution for unjust enrichment substitutes for no loss or harm, and in this respect “[t]he restitution claim stands in flat contrast to the damages action.” Dan Dobbs, Handbook on the Law of Remedies § 4.1, at 224 (1973). Thus, remedies measured by unjust enrichment eschew any reliance on compensating, or substituting for, the plaintiff’s injuries. ¶

Second, the specific disgorgement order sought by this action, rather than focusing on the victim and compensation, instead focuses on the defendant and deterrence. 14  ¶

Third, Plaintiffs’ measure of restitution gives Plaintiffs {p.10} exactly what they would have today if the legal wrong had not been committed. See Blue Fox, 525 U.S. at 262 (quoting Bowen, 487 U.S. at 895) (citation omitted). Plaintiffs seek to disgorge from the United States the market use value owing to the Plaintiffs as a result of the United States’ use of the Chagos Archipelago. See supra Part II. This value—in the form of rental payments—is precisely what the Plaintiffs would have received when they stood ready to participate in a peaceful and lawful transition to a military base-oriented economy, but instead suffered gross legal wrongs. Compl. ¶ 1. ¶

Lastly, disgorgement orders qualify for § 702’s waiver of sovereign immunity because disgorgement orders are enforceable as injunctions. As the court has clearly stated,

We have not traditionally understood a disgorgement obligation to be “a mere money judgment or debt” but rather more akin to “an injunction in the public interest....” Because disgorgement is more like a continuing injunction in the public interest than a debt, we held in Pierce that the disgorgement order could be enforced by contempt sanctions.

Securities and Exch. Comm’n v. Huffman, 996 F.2d 800, 802-03 (5th Cir. 1993) (citing Pierce v. Vision Investments Inc., 779 F.2d 302, 307 (5th Cir. 1986) (holding that court ordered disgorgement payments are injunctive in nature rather than a mere money judgment)). ¶

As a form of injunctive relief, the disgorgement order pursued by Plaintiffs constitutes “relief other than money damages,” and is not barred by sovereign immunity. APA, 5 U.S.C. § 702.

As evidenced by more than a century of community development and intergenerational transfer of both real property and general wealth, see Compl. ¶¶ 11-13, Plaintiffs constitute the indigenous population of the Chagos Archipelago. ¶

The Queen v. Sec’y of State for the Foreign & Commonwealth Office: ex parte Bancoult, 2 W.L.R. 1219 (2000), 2000 WL 1629583, ¶ 1 (QBD (Admin. Ct.)). ¶

Although Plaintiffs stood ready to participate in a peaceful and lawful {p.11} transition to a military base-oriented economy, the United States forcibly relocated Plaintiffs from their homeland, denying Plaintiffs the right to make use of their own lands in concert with the development of the U.S. military base on Diego Garcia. ¶

The United States has unjustly enriched itself at the expense of the Plaintiffs by appropriating the lands in which Plaintiffs held a perfected and recorded interest. See Compl. ¶¶ 11-13. ¶

This unjust enrichment can and should be remedied by an injunctive disgorgement order requiring the United States to make restitution in the amount of the market rental value of the Chagos Archipelago. ¶

Because the instant disgorgement order is both restitutionary and injunctive in nature, § 702’s waiver applies and sovereign immunity does not bar Plaintiffs’ action.

C.  The United States Does Not Act as a Sovereign When Violating Jus Cogens Norms and Consequently Remains Amenable to Suit and Liable for All of Plaintiffs’ Claims

The United States does not enjoy sovereign immunity against Plaintiffs’ suit because Defendant’s actions violate jus cogens norms. 15  ¶

Whereas prior litigation in this area of law has focused on whether a government has “at some point indicated its amenability to suit,” ¶

Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994) (holding Germany had not waived its sovereign immunity), ¶

Plaintiffs do not advance a waiver argument, but instead focus on the predicate question of whether a State may act as a {p.12} sovereign when violating peremptory norms. ¶

Plaintiffs submit that States are incapable of acting as sovereigns while violating the limited array 16  of jus cogens norms — thus obviating the need for a waiver of sovereign immunity — because the essential meaning of jus cogens doctrine is both mutually exclusive of, and superior to, sovereign immunity.

The contradictory nature of the doctrines of jus cogens and sovereign immunity was clearly recognized in Princz:

[A] state is never entitled to immunity for any act that contravenes a jus cogens norm, regardless of where or against whom that act was perpetrated. The rise of jus cogens norms limits state sovereignty in the sense that the general will of the international community of states, and other actors, will take precedence over the individual wills of states to order their relations. Jus cogens norms are by definition nonderogable, and thus when a state thumbs its nose at such a norm, in effect overriding the collective will of the entire international community, the state cannot be performing a sovereign act entitled to immunity.

26 F.3d at 1182 (Wald, J., dissenting) (citations and internal quotations omitted) (emphasis added). ¶

Far from novel, the argument that sovereign immunity does not obtain when a State violates peremptory norms has become commonplace. ¶

See, e.g., Statute of the International Tribunal for Yugoslavia, May, 23, 1993, art. 7 (reflecting the “no immunity” principle); Regina v. Bow Street Metropolitan Stipendiary Magistrate (No. 3), 2 All E.R. 97, 170 (H.L. 1999) (Millett, L., opinion of) (the “Pinochet litigation”); Ilias Bantekas, State Responsibility in Private Civil Actions-Sovereign Immunity and Jus Cogens Norms, 92 Am. J. Int’l. L. 765, 766 (1998) {p.13} (summarizing Prefecture of Voiotia v. Federal Republic of Germany, Case No. 1378/1997, in which the Court of First Instance of Leivadia, Greece held that where a state acts in breach of a rule of jus cogens, that state loses its right to invoke sovereign immunity); Garland A. Kelley, U.S. v. The World: Does Customary International Law Supersede a Federal Statute, 3 Tex. Rev. L. & Pol. 353, 363 (1999) (“At a minimum, this small core of international standards, or ‘peremptory norms,’ is binding on states regardless of consent or considerations of sovereign immunity.”) (emphasis added).

Redress for violations of jus cogens norms is a judicial function. Not only have U.S. courts incorporated jus cogens norms into American jurisprudence, ¶

see generally In re Estate of Ferdinand E. Marcos Litigation (Hilao v. Marcos) {78kb.html}, 25 F.3d 1467, 1473 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995); In re Estate of Ferdinand E. Marcos Litigation (Trajano v. Marcos) {54kb.html}, 978 F.2d 493, 500 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993), ¶

but growing international consensus on the jus cogens status of Plaintiffs’ claims has led to stricter codifications. See supra notes 1-6 and accompanying text. As the Supreme Court has stated,

[i]t should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).

Jus cogens are nonderogable. If this principle is to have any doctrinal meaning and practical effect, sovereign immunity cannot operate to insulate a State from violations of peremptory norms. ¶

Nonderogability and State impunity are mutually exclusive. These rival notions cannot occupy the same doctrinal space any more than the notions of fire and water. {p.14} ¶

Indeed, like fire and water, one must extinguish the other. By their definition, peremptory norms must extinguish sovereign immunity. What does a peremptory norm preempt, if not the opportunity to escape culpability— whether because the substantive law of an individual nation state domestically legalizes the internationally prohibited conduct, or because a judge-made jurisdictional rule bars litigation? ¶

See Kenneth Davis, Administrative Law Treatise 6-7 (2d ed. 1984) (quoting Blackstone) (noting sovereign immunity is derived from English common law); 2 Charles H. Koch, Jr., Administrative Law and Practice 210 (1985) (same). ¶

Permitted to operate within the same sphere as jus cogens norms, sovereign immunity makes nugatory the essential meaning of peremptory norms. In an ironic twist of judicial reasoning, the operation of sovereign immunity as against violations of jus cogens norms robs such norms of their quintessential nonderogability, only then to enshrine it within sovereign immunity itself. ¶

Such a translation (or, mutation) of legal properties not only destroys the common meaning of well-known words and doctrines, but it speciously exalts a judge-made rule into the singular supreme law of nations. ¶

Such cannot be the law. Where a State violates a nonderogable jus cogens norm, “the state cannot be performing a sovereign act entitled to immunity.” Princz, 26 F.3d at 1182 (Wald, J., dissenting).

IV.
Conclusion

For the foregoing reasons, Plaintiffs respectfully request the Court to deny Defendant United States of America’s Motion to Dismiss. {p.15}

 

Respectfully submitted,

{Signature}

Michael E. Tigar
D.C. Bar No. 103762
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Washington, D.C. 20016

Attorney for Plaintiffs {p.16}

______________________

Certificate of Service

I, Karen Heymann, hereby certify that on this 28th day of October, 2002, I caused to be served by first-class mail, postage pre-paid, a true copy of the foregoing Supplemental Memorandum in Response to this Court’s Order of September 30, 2002 on:

Elaine Marzetta Lacy
U.S. Department of Justice
Torts Branch
1331 Pennsylvania Avenue, NW
Washington, D.C. 20004

Attorney for Defendant United States of America

Richard Montague
U.S. Department of Justice
Civil Division
Suite 8122
1425 New York Avenue, N.W.
Washington, D.C. 20005

Attorney for Individual Federal Defendants

Harry Reasoner
Vinson & Elkins
1001 Fannin Street, Suite 2300
Houston, TX 77002-6760

Attorney for Halliburton Corporation

 

{Signature}

Karen Heymann

Footnotes

 1  The human rights norms violated by Plaintiffs’ forced relocation include “denial of the right to return to one’s country [and] mass uprooting of a country’s population,” Restatement (Third) Foreign Relations Law of the United States § 702(g), cmt. m (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}, and “the rights to freedom of movement, to remain in one’s country, and to security in one’s person.” Alvarez-Machain v. United States {64kb.pdf}, 266 F.3d 1045, 1051 (9th Cir. 2001) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}; see also Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, arts. 1, 3, 9, 12, 13 (1948).

 2  The Chagossians are the indigenous population of the Chagos Archipelago. See The Queen v. Sec’y of State for the Foreign & Commonwealth Office: ex parte Bancoult, 2 W.L.R. 1219 (2000), 2000 WL 1629583, ¶ 1 (QBD (Admin. Ct.)) (finding the Chagossians, also known as the Ilois, to be the indigenous peoples of the Chagos Archipelago). Indigenous peoples are recognized as requiring additional protection in international human rights law as evidenced by international treaties and reports. Proposed American Declaration on the Rights of Indigenous Peoples, Inter-American Commission on Human Rights, 95th Sess., CP/doc.2878/97 corr.l, pmbl. (1997); Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59 (entered into force Sept. 5, 1991); see also Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, at 15, U.N. Doc. A/CONF. 189/12 (2001) (addressing and separating out the human rights needs of indigenous peoples).

 3  A peremptory norm, otherwise known as jus cogens norm, is a principle of international law that is accepted by the international community as a norm that cannot be derogated. Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988) (quoting Vienna Convention on the Law of Treaties {458kb.pdf}, May 23, 1969, art. 53, U.N. Doc. A/Conf. 39/27, 8 I.L.M. 679) {1155 U.N.T.S. 331, 344, U.S. Senate Treaty No. 92-12, President transmitted: Nov. 22 1971, status}. ¶

Thus, peremptory norms enjoy the highest status within international law, id., and ¶

Restatement (Third) Foreign Relations Law of the United States § 102, cmt. k (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}.

 4  Genocide is well-established as a jus cogens violation of customary international law. ¶

Restatement (Third) Foreign Relations Law of the United States § 702(a), cmt n (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}; ¶

Convention on the Prevention and Punishment of the Crime of Genocide {US Senate Treaty No. 81-15} (Genocide Convention), Jan. 12, 1951, 78 U.N.T.S. 277, 18 U.S.C. § 1091 (2002); ¶

Bao Ge v. Li Peng, 201 F.Supp.2d 14, 22 n.5 (D.D.C. 2000) (recognizing genocide as one of the most egregious violations of international law); ¶

Kadic v. Karadzic {72kb.html/txt, 100 kb rtf}, 70 F.3d 232, 241 (2d Cir. 1995) (reviewing the development of genocide as a violation of international law).

 5  Torture is a universally recognized jus cogens violation of customary international law. ¶

Restatement (Third) Foreign Relations Law of the United States § 702(d), cmt. g, cmt. n (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}; ¶

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, U.N. Doc. A/39/708, art. I, 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, 1975, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N. Doc. A/1034; ¶

International Covenant for Civil and Political Rights (“ICCPR”), Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 36, art. 7; ¶

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984) (Edwards, J., concurring) {p.3} (recognizing torture as an accepted violation of the law of nations); see also id. at 819-20 (Bork, J., concurring) (agreeing that torture is a violation of international law).

 6  Racial discrimination is well-established as a jus cogens violation of customary international law. ¶

Restatement (Third) Foreign Relations Law of the United States § 702(f), cmt. n (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat}; ¶

International Convention on the Elimination of all Forms of Racial Discrimination, March 7, 1966, 660 U.N.T.S. 195, 5 I.L.M. 352, art. 2; ¶