separation of powers should be seen to limit the effect of the statute to those violations of international law that were recognized as actionable in 1789 or to those which, though more recently established, explicitly entail a private right of action. Judge Roger Robb concurred on the ground that the political question doctrine precluded judicial consideration of the claims raised by the plaintiffs because the legal issues surrounding terrorism are complex and imprecise. It is clear that even under the narrowest of these standards proposed in Tel-Oren, or adopted in other forums -- § 1350 provides this Court with subject matter jurisdiction to determine the liability for the injury that has resulted from the violation of Raoul Wallenberg's diplomatic immunity.
In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), a former Paraguayan police official was sued by the father and sister of a young man whose death by torture he was alleged to have caused. The District Court dismissed the case, saying that although official torture violated emerging standards of international law, it was obliged by dicta in prior Second Circuit opinions to rule that § 1350 does not reach a state's behavior towards its own citizens.
On appeal, the Second Circuit reversed. Judge Kaufman wrote that the "law of nations," as used in the statute, is a developing body of principles which must be interpreted "not as it was in 1789, but as it has evolved and exists among the nations of the world today." 630 F.2d at 881.
Looking to the sources of international law enumerated by the Supreme Court in The Paquete Habana, 175 U.S. 677, 700, 44 L. Ed. 320, 20 S. Ct. 290 (1900)) -- "executive or legislative act or judicial decision" and the works of expert "jurists and commentators," 630 F.2d at 880 -- the court found that "the limitations on a state's power to torture persons held in its custody" constitute a principle on which the opinion of civilized nations is so united as to raise it to a norm of international law. 630 F.2d at 881. See also 630 F.2d at 887-89. The court concluded that the cause of action "is properly brought in federal court." 630 F.2d at 887.
In Tel-Oren, Judge Edwards adopted the approach of the Second Circuit. He stated that § 1350 provides jurisdiction in federal district court where a plaintiff alleges a tortious violation of a principle of international law on which the community of nations has reached a consensus. This is true even where no other basis of jurisdiction is present, and regardless of whether or not a "right to sue" on that violation is independently granted by international law. 726 F.2d at 772-82. Applying these standards to the facts in Tel-Oren, Judge Edwards found that, however reprehensible the actions of the defendants may have been, no consensus existed among nations sufficient to warrant an extension of the Filartiga approach to the law of nations to include disapproval of non-state acts of violence or terrorism. 726 F.2d at 791-96.
The facts presented here easily satisfy the criteria set forth by Judge Edwards. An accredited diplomat has been detained and held incommunicado for more than 35 years; his whereabouts have been concealed; and the defendant may have caused his death. There can be no clearer violation of the law of nations. Under the analysis of Judge Edwards, this proceeding is appropriately before this Court.
Judge Bork concurred in dismissing Tel-Oren on the ground that plaintiffs had failed to meet a more stringent test than proposed by Judge Edwards and relied upon by the Second Circuit. Under Judge Bork's analysis, plaintiffs would have to show not only a violation of the law of nations, but also a source of a right to sue under federal or international law. 726 F.2d at 801, 808. Judge Bork stated that only by limiting § 1350 to cases in which the law of nations clearly envisions judicial involvement would the doctrine of separation of powers be properly served. In cases such as Tel-Oren, where the rule of decision under international law is insufficiently developed, he creates a presumption against jurisdiction which can only be overcome by showing that plaintiffs have been provided with a cause of action under federal or international law. 726 F.2d at 1808.
The facts and allegations of the present case appear to satisfy the requirements set forth by Judge Bork. First, in discussing the unsettled nature of international legal standards regarding terrorism, Judge Bork acknowledges that related areas have been the subject of international consensus through written conventions. 726 F.2d at 806-07. Among the conventions he lists is the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. Diplomatic immunity is an area in which international legal standards have long been clearly stated, and the Convention complements preexisting international accords on the treatment of diplomats.
In the course of his analysis, Judge Bork notes that he is "guided" by the language of the Supreme Court in Banco Nacional de Cuba supra, slip op. p. 16, in which the Court established a sort of sliding scale with respect to judicial application of international law:
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.
726 F.2d at 804. The rules of diplomatic immunity are so well established that judicial determination of a violation of diplomatic immunity poses little or no threat to the doctrine of separation of powers. It is, therefore, fully consistent with the rationale underlying Judge Bork's opinion to permit the federal courts to apply the law of diplomatic immunity.
However, even if his opinion is read to require an explicit showing of a cause of action granted under international law in any case that may touch on foreign relations, plaintiffs' allegations fall within one of the areas that the opinion specifically places within the reach of § 1350.
He stated that the statute is given its more appropriately limited meaning by looking to the "law of nations" as understood in 1789. At that time, the "law of nations" was limited to three primary offenses: "'1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; and 3. Piracy,'" 726 F.2d at 813, quoting 4 W. Blackstone, Commentaries, 68, 72, and Judge Bork concluded that "one might suppose that these were the kinds of offenses for which Congress wished to provide tort jurisdiction for suits by aliens in order to avoid conflicts with other nations." 233 U.S. App. D.C. 384, 726 F.2d 774, 813-14. The American colonies, having adopted the common law of England, adopted a "private cause of action for which section 1350 gave the necessary jurisdiction to federal courts" in these three types of cases. 726 F.2d at 1814 n.22. See also Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 116, 1 L. Ed. 59 (Pa. Ct. Oyer & Term. 1784). Thus, the doctrine of diplomatic immunity is so firmly established as to fall within even the very limited interpretation of § 1350 favored by Judge Bork.
Judge Robb invoked the political question doctrine to dismiss Tel-Oren, based on arguments similar to those used by Judge Bork in defense of the separation of powers. The opinion cautions against judicial interference in a politically sensitive area where the rule of decision is not adequately defined. 726 F.2d at 827 and passim. However, international legal standards with regard to the treatment of diplomats have long been clearly established, and their application should therefore pose little risk of embarrassing the political branches. As Justice White wrote in his dissent in Banco Nacional de Cuba, while
political matters in the realm of foreign affairs are within the exclusive domain of the Executive Branch . . . this is far from saying that the constitution vests in the executive exclusive absolute control of foreign affairs or that the validity of a foreign act of state is necessarily a political question. International law, as well as a treaty or executive agreement, see United States v. Pink, 315 U.S. 203, [86 L. Ed. 796, 62 S. Ct. 552], provides an ascertainable standard for adjudicating the validity of some foreign acts, and courts are competent to apply this body of law, notwithstanding that there may be some cases where comity dictates giving effect to the foreign act because it is not clearly condemned under generally accepted principles of international law.
376 U.S. 398, 461-62, 84 S. Ct. 923, 11 L. Ed. 2d 804. The political question doctrine should therefore not defeat jurisdiction in this case.
Under any one of the three Tel-Oren opinions, § 1350 provides this Court with subject matter jurisdiction to consider this case. Plaintiffs are aliens; the causes of action they bring are in tort. There has, without question, been a violation of the law of nations, as defined by legal scholars, confirmed in international conventions to which the United States is a party, and codified in United States law. The requisites of the Edwards/Filartiga approach are thus satisfied.
The violations alleged involve an area of international law in which standards and norms have long been well-defined. The underlying rationale of the opinions of Judges Bork and Robb -- a reluctance, where legal standards are uncertain, to permit the courts to enter politically sensitive areas -- is therefore met.
Finally, this case satisfies the most stringent of the requirements set forth by Judge Bork. Well before 1789, the protection and well-being of diplomats were understood to be a part of the law of nations, and English (and then American) common law recognized a private cause of action where the law was violated. This right to sue has recently been reaffirmed by the Congress and this Court with respect to acts of violence against internationally protected persons.
STATUTE OF LIMITATIONS
Plaintiffs' claims against the USSR are not barred by any applicable statute of limitations.
Plaintiffs contend that Raoul Wallenberg is still alive, and that his unlawful detention is therefore a continuing violation of the laws of the United States, the laws and treaties of the USSR, and the law of nations. In such circumstances, the statute of limitations has not yet begun to run. The tortious conduct by the defendant is an ongoing violation which precludes the running of a limitations period.
In cases involving an ongoing tort, as here, the cause of action does not accrue for purposes of the running of the statute until the last act constituting the tort is complete. See Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818, 821 (D.C. Cir. 1984) (citing, inter alia, Gross v. United States, 676 F.2d 295, 300 (8th Cir. 1982); Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908, 68 L. Ed. 2d 295, 101 S. Ct. 1975 (1981)).
Moreover, even if Raoul Wallenberg is no longer alive, defendant's concealment of the facts and circumstances surrounding Wallenberg's detention and possible death, since the 1957 Gromyko note, provides two further reasons for this Court to refrain from barring plaintiffs' claims. First, under the "discovery rule" of the District of Columbia, plaintiffs' claims have not yet accrued for statute of limitations purposes. Under this rule, a plaintiff's cause of action does not accrue until the plaintiff learns, or with reasonable diligence could have learned, that he has been injured, see, e.g., Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 116-18 (D.C. Cir. 1982); Grigsby v. Sterling Drug, Inc., 428 F. Supp. 242, 243 (D.D.C. 1975), aff'd without opinion, 177 U.S. App. D.C. 270, 543 F.2d 417 (D.C. Cir. 1976), cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977), and that his injury is due to wrongdoing on the part of the defendant, see, e.g., Dawson v. Eli Lilly and Co., 543 F. Supp. 1330, 1333-34 (D.D.C. 1982).
In this proceeding, the plaintiffs have no way of knowing whether Wallenberg is dead, or if he is dead, the circumstances of his death and the identity of those responsible. The Gromyko note, in light of the weight of contradictory evidence, cannot provide a reasonable basis for holding that plaintiffs have learned that Wallenberg is no longer alive. Such information remains solely within the control of the USSR.
Second, when a defendant has fraudulently concealed facts giving rise to a cause of action, the statute of limitations is tolled until plaintiffs, employing due diligence, discover or should have discovered the facts giving rise to the claim -- in this case, evidence that Wallenberg is indeed no longer alive and that defendant was involved in his death. Richards v. Mileski, 213 U.S. App. D.C. 220, 662 F.2d 65, 68-69 (D.C. Cir. 1981). See also, e.g., Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1 (D.C. Cir. 1984), cert. denied sub nom Brennan v. Hobson, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985). With respect to the matter of burden of proof and due diligence, our Circuit Court stated in Richards :
When tolling is proper because the defendants have concealed the very cause of action, or their involvement in a cause of action about which the plaintiff might otherwise be aware, they have the burden of coming forward with any facts showing that the plaintiff could have discovered their involvement or the cause of action if he had exercised due diligence.
662 F.2d at 71. See also Smith v. Nixon, 196 U.S. App. D.C. 276, 606 F.2d 1183, 1191 (D.C. Cir. 1979), cert. denied, 453 U.S. 912, 69 L. Ed. 2d 997, 101 S. Ct. 3147, and cert. denied, 453 U.S. 928, 69 L. Ed. 2d 1024, 101 S. Ct. 892 (1981). The defendant cannot meet this burden. Since 1945, it has concealed the truth concerning the condition and whereabouts of Raoul Wallenberg.
There are few principles of international law, if any, that are as universally recognized as the principle of diplomatic immunity. The seizure and detention of Raoul Wallenberg presents a clear violation of the law of nations as well as a clear violation of the laws and treaties of the United States and the Soviet Union. Moreover, the record in this action is clear, in that it does not show that the Soviet Union has sought, in any manner, to justify its conduct toward Wallenberg. Indeed, the 1957 Gromyko Note, supra pp. 5-6, characterizes his detention and the concealment of his whereabouts as criminal activity.
The history of the diplomatic immunity doctrine is traced from many recognized sources. See D. Michaels, International Privileges and Immunities, 7, 1971; 1 L. Oppenheim, International Law § 386 (1905); Restatement of Foreign Relations Law of the United States (Revised) § 461 (Tent. Draft no. 4, 1983). The concept was a part of the ancient civilizations of China, India and Egypt, United States v. Enger, 472 F. Supp. 490, 504 (D. N.J. 1978).
The present day consensus of the international community on the protection afforded diplomats has been codified in a number of international agreements, primarily the Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502. Article 29 of the Convention states that
the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
23 U.S.T. at 3240, T.I.A.S. No. 7502 at 14. Corresponding obligations are imposed upon states other than the receiving state under Article 40 of the Convention. 23 U.S.T. at 3246, T.I.A.S. No. 7502 at 20-21.
In the 1970s, the community of nations reaffirmed its commitment to the safety of diplomats by entering into the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, December 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532. The Convention requires signatory nations to take steps to punish the "murder, kidnapping or other attack upon the person or liberty of an internationally protected person," 28 U.S.T. at 1978, T.I.A.S. No. 8532 at 4, as well as other crimes or threats against them. The Soviet Union is a party to both the Vienna Convention and the 1973 Convention.
Wallenberg's treatment at the hands of the Soviet Union also violates a number of international treaties and conventions relating to human rights, all of which have been signed by the Soviet Union. Under Articles 55 and 56 of the United Nations Charter, each member state pledges to take action to promote "universal respect for, and observance of, human rights and fundamental freedoms." 59 Stat. 1033, 1045-46 (1945). These obligations are given further substance in subsequent documents. Article 3 of the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/1810 (1948), mandates the protection of "life, liberty and security of person." Article 9 protects the right not to "be subjected to arbitrary arrest, detention or exile." Article 10 protects each person's right to a fair and public hearing of criminal charges against him. Article 12 protects the right not to "be subjected to arbitrary interference with . . . privacy, family, home or correspondence." The international community -- including the Soviet Union -- reaffirmed its commitment to these rights in the International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1967),
and again in the Final Act of the Conference on Security and Cooperation in Europe (Helsinki 1975), Department of State Bulletin Reprint, Sept. 1, 1975.
United States law has long accepted international standards of diplomatic immunity as part of its common law and has recognized a private civil cause of action for a violation of diplomatic immunity. See Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 814 n.22 (D.C. Cir. 1984). In Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 1 L. Ed. 59 (Pa. Ct. Oyer & Term. 1784), the Supreme Court held that the De Longchamps committed "an atrocious violation of the law of nations," when, having first insulted the Consul General of France to the United States, he struck the cane of the diplomat. The Court described De Longchamps' actions as gross insults, and diplomats as "the peculiar objects" of the law of nations. 1 U.S. (1 Dall.) at 111, 117.
In 1976, the United States Congress enacted the Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons, 18 U.S.C. §§ 1116, 1201, 112, 970, 878 and 11. That criminal statute proscribes the murder or attempted murder of an internationally protected person, and permits the exercise by the United States of jurisdiction over such an offense "if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender." 18 U.S.C. § 1116(c). An "internationally protected person" is defined as including, inter alia,
any . . . representative, officer, employee, or agent of the United States Government, a foreign government, or international organization who at the time and place concerned is entitled pursuant to international law to special protection against attack upon his person, freedom, or dignity.
18 U.S.C. § 1116((b)(4)(B). Similar prohibitory and jurisdictional language governs the kidnapping of such a person under 18 U.S.C. § 1201(a)(4) and (e).
At the time of his kidnapping, Raoul Wallenberg was an accredited Swedish diplomat. He was thus an "internationally protected person" within the meaning of §§ 1116 and 1201(a)(4) and (e). His kidnapping was therefore a violation of § 1201(a)(4); if he is no longer alive, § 1116 has also been violated. In enacting these statutes, Congress expressly declared its intent to prohibit such acts wherever and by whomever committed, and whatever the nationality of the victim.
Moreover, this Court has recognized a civil cause of action under federal law on behalf of private plaintiffs pursuant to 18 U.S.C. § 1116. In Letelier, 502 F. Supp. at 266, jurisdiction was upheld in a suit brought by the surviving spouses of an exiled Chilean diplomat and his co-worker against those responsible for their murder. The same rationale should apply to § 1201(a)(4) and (e). Under both, plaintiffs are entitled to immediate declaratory relief.
The Soviet Union's treatment of Raoul Wallenberg is unlawful even under its own statutes.
The Statute on Diplomatic and Consular Representations of Foreign States on the Territory of the USSR, confirmed by edict of the Presidium of the USSR Supreme Soviet on May 23, 1966, set forth in Collected Legislation of the Union of Soviet Socialist Republics and the Constituent Union Republics (Butler ed. 1983), affirms the privileges and immunities due to diplomats, Article 1, as well as the primacy of "international treaty rules" on the subject, Article 3. By its terms, the statute applies to diplomatic or consular representations "on the territory of the USSR." Article 1. The "inviolability" while travelling in the "territory of the USSR" of diplomats representing a "foreign state in a third country" is specifically assured in Article 18. The detention of Wallenberg plainly violates the diplomatic immunity guaranteed by the statute.
Wallenberg's detention is also violative of the Criminal Code of the Russian Soviet Federated Socialist Republic, and corresponding provisions of the Criminal Codes of other Republics of the USSR. Article 126 of the Federated Socialistic Republic Criminal Code outlaws any deprivation of freedom that was illegal as of the time committed. Article 178 proscribes an arrest or detention which is known to be illegal and which is illegal in fact. Wallenberg's arrest and detention were and continue to be illegal under principles of international law and international agreements which were in force in 1945 and to which the USSR was a party. Moreover, the 1957 Gromyko Note acknowledged the illegality of Wallenberg's detention and of the misinformation that made it possible.
The Soviet Union's treatment of Raoul Wallenberg is unlawful under any standard of applicable law. It has never argued otherwise; it has denied and disclaimed its actions, but it has never defended them.
In many ways, this action is without precedent in the history of actions against foreign sovereigns. It involves actions which the Soviet Union has already admitted were unlawful. It involves a gross violation of the personal immunity of a diplomat, one of the oldest and most universally recognized principles of international law. Furthermore, this action involves a deliberate default by a defendant which has repeatedly demonstrated its familiarity with the proper means for raising a defense of sovereign immunity under the Foreign Sovereign Immunities Act.
There can be little, if any, doubt that both subject matter and personal jurisdiction are conferred through that Act. Whatever sovereign immunity the defendant might have had, is, by the terms of the Act, subject to international agreements to which the United States was a party when the FSIA was enacted in 1976 which prohibit defendant's actions regarding Mr. Wallenberg.
Additionally, this Court determines that no applicable statute of limitations has begun to run against plaintiff's claims. Because Mr. Wallenberg is still being unlawfully held by the defendants, or alternatively, he is dead, the statute is tolled by the "discovery rule" and/or the law on tolling applicable when one party has fraudulently concealed facts.
For all of these reasons, default judgment is hereby entered against the defendant.