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                  UNITED STATES COURT OF APPEALS

                      FOR THE SECOND CIRCUIT

                Nos. 1541, 1544 -- August Term 1994

Argued:  June 20, 1995           Decided: October 13, 1995)

Finally Submitted:  October 11, 1995

                    Docket Nos. 94-9035, -9069

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S. K., on her own behalf and on behalf  of her infant sons
B. and O., INTERNATIONALNA INICIATIVA ZENA BOSNE I
HERCEGOVINE "BISER," and ZENE BOSNE I HERCVINE,

          Plaintiffs-Appellants,

                 v.

RADOVAN KARADZIC,

          Defendant-Appellee.

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JANE DOE I, on behalf of herself and all others similarly
situated; and JANE DOE II, on behalf of herself and as
administratrix of the estate of her deceased mother, and on behalf
of all other similarly situated,

          Plaintiffs-Appellants,

                 v.

RADOVAN KARADZIC,

          Defendant-Appellee.

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Before:  NEWMAN, _Chief Judge_, FEINBERG and WALKER, _Circuit
Judges_.

Appeals from the judgment entered September 19, 1994, in the
Southern District of New York (Peter K. Leisure, Judge)
dismissing, for lack of subject matter jurisdiction, two lawsuits
by victims of atrocities allegedly committed in Bosnia by the
Bosnian-Serb leader, Radovan Karadzic. _Doe v. Karadzic_, 866 F.
Supp. 734 (S.D.N.Y. 1994).

Judgment reversed and cases remanded.

Beth Stephens, New York, N.Y. (Matthew J. Chachgre, Jennifer
Green, Peter Weiss, Michael Ratner, Jules Lobel, Center for
Constitutional Rights, New York, N.Y.; Rhonda Copelon, Celina
Romany, International Women's Human Rights Clinic, Flushing, N.Y.;
Judith Levin, International League of Human Rights, New York,
N.Y.; Harold Hongju Koh, Ronald C. Slye, Swati Agrawal, Bruce
Brown, Charlotte Burrows, Carl Goldfarb, Linda Keller, Jon
Levitsky, Daniyal Mueenuddin, Steve Parker, Maxwell S. Peltz, Amy
Valley, Wendy Weiser, Allard K. Lowenstein International Human
Rights Clinic, New Haven, Conn., on the brief), for
plaintiffs-appellants, Jane Doe I and Jane Doe II.

Catharine A. MacKinnon, Ann Arbor, Mich. (Martha F. Davis, Deborah
A. Ellis, Yolanda S. Wu, NOW Legal Defense and Education Fund, New
York, N.Y., on the brief), for plaintiffs-appellants K.,
Internationalna Iniciativa Zena Bosne I Hercegovine, and Zena
Bosne I Hercegovine.

Ramsey Clark, New York, N.Y. (Lawrence W. Schilling, New York,
N.Y., on the brief), for defendant-appellee.

(Drew S. Days, III, Solicitor General, and Conrad K. Harper, Legal
Adviser, Department of State, Washington, D.C., submitted a
Statement of Interest of the United States; Frank W. Hunger, Asst.
Atty. Gen., and Douglas Letter, Appellate Litigation Counsel, on
the brief).

(Karen Honeycut, Vladeck, Waldman, Elias & Engelhard, New York,
N.Y., submitted a brief for _amici_ _curiae_ Law Professors
Frederick M. Abbott, et al.).

(Nancy Kelly, Women Refugee Project, Harvard Immigration and
Refugee Program, Cambridge and Somerville Legal Services,
Cambridge, Mass., submitted a brief for _amici_ _curiae_ Alliances
- an African Women's Network, et al.).

(Juan E. Mendez, Joanne Mariner, Washington, D.C.; Professor Ralph
G. Steinhardt, George Washington University School of Law,
Washington, D.C.; Paul L. Hoffman, Santa Monica, Cal.; Professor
Joan Fitzpatrick, University of Washington School of Law, Seattle,
Wash., submitted a brief for _amicus_ _curiae_ Human Rights Watch.


(Stephen M. Schneebaum, Washington, D.C., submitted a brief for
_amici curiae_ The International Human Rights Law Group, et
al.).

JON O. NEWMAN, _Chief Judge_:

Most Americans would probably be surprised to learn that victims
of atrocities committed in Bosnia are suing the leader of the
insurgent Bosnian-Serb forces in a United States District Court in
Manhattan. Their claims seek to build upon the foundation of this
Court's decision in _Filartiga v. Pepa-Irala_, 630 F.2d 876 (2d
Cir. 1980), which recognized the important principle that the
venerable Alien Tort Act, 28 U.S.C.  1350 (1988), enacted in 1789
but rarely invoked since then, validly creates federal court
jurisdiction for suits alleging torts committed anywhere in the
world against aliens in violation of the law of nations. The
pending appeals pose additional significant issues as to the scope
of the Alien Tort Act: whether some violations of the law of
nations may be remedied when committed by those not acting under
the authority of a state; if so, whether genocide, war crimes, and
crimes against humanity are among the violations that do not
require state action; and whether a person, otherwise liable for a
violation of the law of nations, is immune from service of process
because he is present in the United States as an invitee of the
United Nations.

These issues arise on appeals by two groups of
plaintiffs-appellants from the November 19, 1994, judgment of the
United States District Court for the Southern District of New York
(Peter K. Leisure, Judge), dismissing, for lack of subject matter
jurisdiction, their suits against defendant-appellee Radovan
Karadzic, President of the self-proclaimed Bosnian-Serb republic
of "Srpska." _Doe v. Karadzic_, 866 F. Supp. 734 (S.D.N.Y. 1994)
("_Doe_"). For reasons set forth below, we hold that subject
matter jurisdiction exists, that Karadzic may be found liable for
genocide, war crimes, and crimes against humanity in his private
capacity and for other violations in his capacity as a state
actor, and that he is not immune from service of process. We
therefore reverse and remand.

Background

The plaintiffs-appellants are Croat and Muslim citizens of the
internationally recognized nation of Bosnia-Herzegovina, formerly
a republic of Yugoslavia. Their complaints, which we accept as
true for purposes of this appeal, allege that they are victims,
and representatives of victims, of various atrocities, including
brutal acts of rape, forced prostitution, forced impregnation,
torture, and summary execution, carried out by Bosnian-Serb
military forces as part of a genocidal campaign conducted in the
course of the Bosnian civil war. Karadzic, formerly a citizen of
Yugoslavia and now a citizen of Bosnia-Herzegovina, is the
President of a three-man presidency of the self-proclaimed
Bosnian-Serb republic within Bosnia-Herzegovina, sometimes
referred to as "Srpska," which claims to exercise lawful
authority, and does in fact exercise actual control, over large
parts of the territory of Bosnia-Herzegovina. In his capacity as
President, Karadzic possesses ultimate command authority over the
Bosnian-Serb military forces, and the injuries perpetrated upon
plaintiffs were committed as part of a pattern of systematic human
rights violations that was directed by Karadzic and carried out by
the military forces under his command. The complaints allege that
Karadzic acted in an official capacity either as the titular head
of Srpska or in collaboration with the government of the
recognized nation of the former Yugoslavia and its dominant
constituent republic, Serbia.

The two groups of plaintiffs asserted causes of action for
genocide, rape, forced prostitution and impregnation, torture and
other cruel, inhuman, and degrading treatment, assault and
battery, sex and ethnic inequality, summary execution, and
wrongful death. They sought compensatory and punitive damages,
attorney's fees, and, in one of the cases, injunctive relief.
Plaintiffs grounded subject-matter jurisdiction in the Alien Tort
Act, the Torture Victim Protection Act of 1991 ("Torture Victim
Act"), Pub. L. No. 102-256, 106 Stat. 73 (1992), _codified at_ 28
U.S.C.  1350 note (Supp. V 1993), the general federal-question
jurisdictional statute, 28 U.S.C.  1331 (1988), and principles of
supplemental jurisdiction, 28 U.S.C.  1367 (Supp. V 1993).

In early 1993, Karadzic was admitted to the United States on three
separate occasions as an invitee of the United Nations. According
to affidavits submitted by the plaintiffs, Karadzic was personally
served with the summons and complaint in each action during two of
these visits while he was physically present in Manhattan.
Karadzic admits that he received the summons and complaint in the
_K._ action, but disputes whether the attempt to serve him
personally in the _Doe_ action was effective.

In the District Court, Karadzic moved for dismissal of both
actions on the grounds of insufficient service of process, lack of
personal jurisdiction, lack of subject-matter jurisdiction, and
nonjusticiability of plaintiffs' claims. However, Karadzic
submitted a memorandum of law and supporting papers only on the
issues of service of process and personal jurisdiction, while
reserving the issues of subject-matter jurisdiction and
nonjusticiability for further briefing, if necessary. The
plaintiffs submitted papers responding only to the issues raised
by the defendant.

Without notice or a hearing, the District Court by-passed the
issues briefed by the parties and dismissed both actions for lack
of subject-matter jurisdiction. In an Opinion and Order, reported
at 866 F. Supp. 734, the District Judge preliminarily noted that
the Court might be deprived of jurisdiction if the Executive
Branch were to recognize Karadzic as the head of state of a
friendly nation, _see_ _Lafontant v. Aristide_, 844 F. Supp. 128
(E.D.N.Y. 1994) (head-of-state immunity), and that this
possibility could render the plaintiffs' pending claims requests
for an advisory opinion. The District Judge recognized that this
consideration was not dispositive but believed that it "militates
against this Court exercising jurisdiction." ___Doe_, 866 F. Supp.
at 738.

Turning to the issue of subject-matter jurisdiction under the
Alien Tort Act, the Court concluded that "acts committed by
non-state actors do not violate the law of nations," _id._ at 739.
Finding that "[t]he current Bosnian-Serb warring military faction
does not constitute a recognized state," _id._ at 741 and that
"the members of Karadzic's faction do not act under the color of
any recognized state law," _id._, the Court concluded that "the
acts alleged in the instant action[s], while grossly repugnant,
cannot be remedied through [the Alien Tort Act]," _id._ at 740-41.
The Court did not consider the plaintiffs' alternative claim that
Karadzic acted under color of law by acting in concert with the
Serbian Republic of the former Yugoslavia, a recognized nation.

The District Judge also found that the apparent absence of state
action barred plaintiffs' claim under the Torture Victim Act,
which expressly requires that an individual defendant act "under
actual or apparent authority, or color of law, of any foreign
nation," Torture Victim Act  2(a). With respect to plaintiffs'
further claim that the law of nations, as incorporated into
federal common law, gives rise to an implied cause of action over
which the Court would have jurisdiction pursuant to section 1331,
the Judge found that the law of nations does not give rise to
implied rights of action absent specific Congressional
authorization, and that, in any event, such an implied right of
action would not lie in the absence of state action. Finally,
having dismissed all of plaintiffs' federal claims, the Court
declined to exercise supplemental jurisdiction over their
state-law claims.

Discussion

Though the District Court dismissed for lack of subject matter
jurisdiction, the parties have briefed not only that issue but
also the threshold issues of personal jurisdiction and
justiciability under the political question doctrine. Karadzic
urges us to affirm on any one of these three grounds. We consider
each in turn.

I. Subject-Matter Jurisdiction

Appellants allege three statutory bases for the subject matter
jurisdiction of the District Court -- the Alien Tort Act, the
Torture Victim Act, and the general federal-question
jurisdictional statute.

A. The Alien Tort Act

1. General Application to Appellants' Claims

The Alien Tort Act provides:

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 (1988). Our decision in _Filartiga_ established
that this statute confers federal subject-matter jurisdiction when
the following three conditions are satisfied: (1) an alien sues
(2) for a tort (3) committed in violation of the law of nations
(_i.e._, international law).[FN 1] _Id._ at 887; _see also_
_Amerada Hess Shipping Corp. v. Argentine Republic_, 830 F.2d 421,
425 (2d Cir. 1987), _rev'd on other grounds_, 488 U.S. 428 (1989).
The first two requirements are plainly satisfied here, and the
only disputed issue is whether plaintiffs have pleaded violations
of international law.

Because the Alien Tort Act requires that plaintiffs plead a__
"violation of the law of nations" at the jurisdictional threshold,
this statute requires a more searching review of the merits to
establish jurisdiction than is required under the more flexible
"arising under" formula of section 1331. _See_ _Filartiga_, 630
F.2d at 887-88. Thus, it is not a sufficient basis for
jurisdiction to plead merely a colorable violation of the law of
nations. There is no federal subject-matter jurisdiction under the
Alien Tort Act unless the complaint adequately pleads a violation
of the law of nations (or treaty of the United States).

_Filartiga_ established that courts ascertaining the content of
the law of nations "must interpret international law not as it was
in 1789, but as it has evolved and exists among the nations of the
world today." _Id._ at 881; _see also_ _Amerada Hess_, 830 F.2d at
425. We find the norms of contemporary international law by
"`consulting the works of jurists, writing professedly on public
law; or by the general usage and practice of nations; or by
judicial decisions recognizing and enforcing that law.'"
_Filartiga_, 630 F.2d at 880 (quoting _United States v. Smith_, 18
U.S. (5 Wheat.) 153, 160-61 (1820)). If this inquiry discloses
that the defendant's alleged conduct violates "well-established,
universally recognized norms of international law," _id._ at 888,
as opposed to "idiosyncratic legal rules," _id._ at 881, then
federal jurisdiction exists under the Alien Tort Act.

Karadzic contends that appellants have not alleged violations of
the norms of international law because such norms bind only states
and persons acting under color of a state's law, not private
individuals. In making this contention, Karadzic advances the
contradictory positions that he is not a state actor, _see_ Brief
for Appellee at 19, even as he asserts that he is the President of
the self-proclaimed Republic of Srpska, _see_ statement of Radovan
Karadzic, May 3, 1993, submitted with Defendant's Motion to
Dismiss. For their part, the K. appellants also take somewhat
inconsistent positions in pleading defendant's role as President
of Srpska, K. Complaint 5 13, and also contending that
"Karadzic is not an official of any government," K. Plaintiffs'
Memorandum in Opposition to Defendant's Motion to Dismiss at 21
n.25.

Judge Leisure accepted Karadz action required primarily on the XXX
basis of cases determining the need for state action as to claims
of official torture, _see_, _e.g._, _Carmichael v. United
Technologies Corp._, 835 F.2d 109 (5th Cir. 1988), without
consideration of the substantial body of law, discussed below,
that renders private individuals liable for some international law
violations.

We do not agree that the law of nations, as understood in the
modern era, confines its reach to state action. Instead, we hold
that certain forms of conduct violate the law of nations whether
undertaken by those acting under the auspices of a state or only
as private individuals. An early example of the application of the
law of nations to the acts of private individuals is the
prohibition against piracyd. 1979). Later examples are
prohibitions against the slave trade and certain war crimes. _See_
M. Cherif Bassiouni, _Crimes Against Humanity in International
Criminal Law_ 193 (1992); Jordan Paust, _The Other Side of Right:
Private Duties Under Human Rights Law_, 5 Harv. Hum. Rts. J. 51
(1992).

The liability of private persons for certain violations of
customary international law and the availability of the Alien Tort
Act to remedy such violations was early recognized by the
Executive Branch in an opinion of Attorney General Bradford in
reference to acts of American citizens aiding the French fleet to
plunder British property off the coast of Sierra Leone in 1795.
_See_ _Breach of Neutrality_, 1 Op. Att'y Gen. 57, 59 (1795). The
Executive Branch has emphatically restated in this litigation its
position that private persons may be found liable under the Alien
Tort Act for acts of genocide, war crimes, and other violations of
international humanitarian law. _See_ _Statement of Interest of
the United States_ at 5-13.

The Restatement (Third) of the Foreign Relations Law of the United
States (1986) ("_Restatement (Third)_") proclaims: "Individuals
may be held liable for offenses against international law, such as
piracy, war crimes, and genocide." _Restatement (Third)_ pt. II,
introductory note. The Restatement is careful to identify those
violations that are actionable when committed by a state,
_Restatement (Third)_ Sec. 702,[FN3] and a more limited category of
violations of "universal concern," _id._ Sec. 404,[FN4] partially
overlapping with those listed in section 702. Though the immediate
focus of section 404 is to identify those offenses for which a
state has jurisdiction to punish without regard to territoriality
or the nationality of the offenders, _cf._ _id._ Sec. 402(1)(a), (2),
the inclusion of piracy and slave trade from an earlier era and
aircraft hijacking from the modern era demonstrates that the
offenses of "universal concern" include those capable of being
committed by non-state actors. Although the jurisdiction
authorized by section 404 is usually exercised by application of
criminal law, international law also permits states to establish
appropriate civil remedies, _id._ Sec. 404 cmt. b, such as the tort
actions authorized by the Alien Tort Act. Indeed, the two cases
invoking the Alien Tort Act prior to _Filartiga_ both applied the
civil remedy to private action. _See_ _Adra v. Clift_, 195 F.
Supp. 857 (D. Md. 1961); _Bolchos v. Darrel_, 3 F. Cas. 810
(D.S.C. 1795)(No. 1,607).

Karadzic disputes the application of the law of nations to any
violations committed by private individuals, relying on
_Filartiga_ and the concurring opinion of Judge Edwards in
_Tel-Oren v. Libyan Arab Republic_, 726 F.2d 774, 775 (D.C. Cir.
1984), _cert. denied_, 470 U.S. 1003 (1985).[FN5] _Filartiga_
involved an allegation of torture committed by a state official.
Relying on the United Nations' Declaration on the Protection of
All Persons from Being Subjected to Torture, G.A. Res. 3452, U.N.
GAOR, U.N. Doc. A/1034 (1975) (hereinafter "Declaration on
Torture"), as a definitive statement of norms of customary
international law prohibiting states from permitting torture, we
ruled that "_official_ torture is now prohibited by the law of
nations." _Filartiga_, 630 F.2d at 884 (emphasis added). We had no
occasion to consider whether international law violations other
than torture are actionable against private individuals, and
nothing in _Filartiga_ purports to preclude such a result.

Nor did Judge Edwards in his scholarly opinion in _Tel-Oren_
reject the application of international law to any private action.
On the contrary, citing piracy and slave-trading as early
examples, he observed that there exists a "handful of crimes to
which the law of nations attributes individual responsibility,"
_id._ at 795. Reviewing authorities similar to those consulted in
_Filartiga_, he merely concluded that torture -- the specific
violation alleged in _Tel-Oren_ -- was not within the limited
category of violations that do not require state action.

Karadzic also contends that Congress intended the state-action
requirement of the Torture Victim Act to apply to actions under
the Alien Tort Act. We disagree. Congress enacted the Torture
Victim Act to codify the cause of action recognized by this
Circuit in _Filartiga_, and to further extend that cause of action
to plaintiffs who are U.S. citizens. _See_ H.R. Rep. No. 367, 102d
Cong., 2d Sess., at 4 (1991), _reprinted in_ 1992 U.S.C.C.A.N. 84,
86 ____(explaining that codification of _Filartiga_ was necessary
in light of skepticism expressed by Judge Bork's concurring
opinion in _Tel-Oren_). At the same time, Congress indicated that
the Alien Tort Act "has other important uses and should not be
replaced," because claims based on torture and summary executions
do not exhaust the list of actions that may appropriately be
covered [by the Alien Tort Act]. That statute should remain intact
to permit suits based on other norms that already exist or may
ripen in the future into rules of customary international law.

_Id._ The scope of the Alien Tort Act remains undiminished by
enactment of the Torture Victim Act.

2. Specific Application of Alien Tort Act to Appellants' Claims

In order to determine whether the offenses alleged by the
appellants in this litigation are violations of the law of nations
that may be the subject of Alien Tort Act claims against a private
individual, we must make a particularized examination of these
offenses, mindful of the important precept that "evolving
standards of international law govern who is within the [Alien
Tort Act's] jurisdictional grant." _Amerada Hess_, 830 F.2d at
425. In making that inquiry, it will be helpful to group the
appellants' claims into three categories: (a) genocide, (b) war
crimes, and (c) other instances of inkly achieved broad acceptance
by the community of nations. In 1946, the General Assembly of the
United Nations declared that genocide is a crime under
international law that is condemned by the civilized world,
whether the perpetrators are "private individuals, public
officials or statesmen." __G.A. Res. 96(I), 1 U.N. GAOR, U.N. Doc.
A/64/Add.1, at 188-89 (1946). The General Assembly also affirmed
the principles of Article 6 of the Agreement and Charter
Establishing the Nuremberg War Crimes Tribunal for punishing
"`persecutions on political, racial, or religious grounds,'"
regardless of whether the offenders acted "`as individuals or as
members of organizations,'" _In re Extradition of Demjanjuk_, 612
F. Supp. 544, 555 n.11 (N.D. Ohio) (quoting Article 6). _See_ G.A.
Res. 95(I), 1 U.N. GAOR, U.N. Doc. A/64/Add.1, at 188 (1946).

The Convention on the Prevention and Punishment of the Crime of
Genocide, 78 U.N.T.S. 277, _entered into force_ Jan. 12, 1951,
_for the United States_ Feb. 23, 1989 (hereinafter "Convention on
Genocide"), provides a more specific articulation of the
prohibition of genocide in international law. The Convention,
which has been ratified by more than 120 nations, including the
United States, _see_ U.S. Dept. of State, _Treaties in Force_ 345
(1994), defines "genocide" to mean 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 with the group;

(e) Forcibly transferring children of the group to another group.
Convention on Genocide art. II. Especially pertinent to the
pending appeal, the Convention makes clear that "[p]ersons
committing genocide . . . shall be punished, _whether they are
constitutionally responsible rulers, public officials or private
individuals_." _Id._ art. IV (emphasis added). These authorities
unambiguously reflect that, from its incorporation into
international law, the proscription of genocide has applied
equally to state and non-state actors.

The applicability of this norm to private individuals is also
confirmed by the Genocide Convention Implementation Act of 1987,
18 U.S.C. Sec. 1091 (1988), which criminalizes acts of genocide
without regard to whether the offender is acting under color of
law, _see_ _id._ Sec. 1091(a) ("[w]hoever" commits genocide shall be
punished), if the crime is committed within the United States or
by a U.S. national, _id._ Sec. 1091(d). Though Congress provided that
the Genocide Convention Implementation Act shall not "be construed
as creating any substantive or procedural right enforceable by law
by any party in any proceeding," _id._ Sec. 1092, the legislative
decision not to create a new private remedy does not imply that a
private remedy is not already available under the Alien Tort Act.
Nothing in the Genocide Convention Implementation Act or its
legislative history reveals an intent by Congress to repeal the
Alien Tort Act insofar as it applies to genocide,[FN6] and the two
statutes are surely not repugnant to each other. Under tion are
not favored and will not be found unless an intent to repeal is
clear and manifest.") (citations and internal quotation marks
omitted); _United States v. Cook_, 922 F.2d 1026, 1034 (2d Cir.)
("mutual exclusivity" of statutes is required to demonstrate
Congress's "clear, affirmative intent to repeal"), _cert. denied_,
500 U.S. 941 (1991).

Appellants' allegations that Karadzic personally planned and
ordered a campaign of murder, rape, forced impregnation, and other
forms of torture designed to destre the law of war. Atrocities of
the types alleged here have long been recognized in international
law as violations of the law of war. _See_ _In re Yamashita_, 327
U.S. 1, 14 (1946). Moreover, international law imposes an
affirmative duty on military commanders to take appropriate
measures within their power to control troops under their command
for the prevention of such atrocities. _Id._ at 15-16.

After the Second World War, the law of war was codified in the
four Geneva Conventions,[FN7] which have been ratified by more
than 180 nations, including the United States, _see_ _Treaties in
Force_, _supra_, 398-99. Common article 3, which is substantially
identical in each of the four Conventions, applies to "armed
conflict[s] not of an international character" and binds "each
Party to the conflict . . . to apply, as a minimum, the following
provisions":

Persons taking no active part in the hostilities . . . shall in
all circumstances be treated humanely, without any adverse
distinction founded on race, coloties to internal conflicts
regardless of whether they are recognized nations or roving hordes
of insurgents. The liability of private individuals for committing
war crimes has been recognized since World War I and was confirmed
at Nuremberg after World War II, _see_ Telford Taylor, _Nuremberg
Trials: War Crimes and International Law_, 450 Int'l Conciliation
304 (April 1949) (collecting cases), and remains today an
important aspect of international law, _see_ Jordan Paust, _After
My Lai: The Case for War Crimes Jurisdiction Over Civilians in
Federal District Courts_, in 4 The Vietnam War and International
Law 447 (R. Falk ed. 1976). The District Court has jurisdiction
pursuant to the Alien Tort Act over appellants' claims of war
crimes and other violations of international humanitarian law.

(c) _Torture and summary execution_. In _Filartiga_, we held that
_official_ torture is prohibited by universally accepted norms of
international law, _see_ 630 F.2d at 885, and the Torture Victim
Act confirms this holding and extends it to cover summary
execution. Torture Victim Act Secs. 2(a), 3(a). However, torture and
summary execution -- when not perpetrated in the course of
genocide or war crimes -- are proscribed by international law only
when committed by state officials or under color of law. _See_
Declaration on Torture art. 1 (defining torture as being
"inflicted by or at the instigation of a public official");
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment pt. I, art. 1, 23 I.L.M. 1027 (1984), _as
modified_, 24 I.L.M. 535 (1985), _entered into force_ June 26,
1987, _ratified by United States_ Oct. 21, 1994, 34 I.L.M. 590,
591 (1995) (defining torture as "inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity"); Torture
Victim Act Sec. 2(a) (imposing liability on individuals acting "under
actual or apparent authority, or color of law, of any foreign
nation").

In the present case, appellants allege that acts of rape, torture,
and summary execution were committed during hostilities by troops
under Karadzic's command and with the specific intent of
destroying appellants' ethnic-religious groups. Thus, many of the
alleged atrocities are already encompassed within the appellants'
claims of genocide and war crimes. Of course, at this threshold
stage in the proceedings it cannot be known whether appellants
will be able to prove the specific intent that is an element of
genocide, or prove that each of the alleged torts were committed
in the course of an armed conflict, as required to establish war
crimes. It suffices to hold at this stage that the alleged
atrocities are actionable under the Alien Tort Act, without regard
to state action, to the extent that they were committed in pursuit
of genocide or war crimes, and otherwise may be pursued against
Karadzic to the extent that he is shown to be a state actor. Since
the meaning of the state action requirement for purposes of
international law violations will likely arise on remand and has
already been considered by the District Court, we turn next to
that requirement.

3. The State Action Requirement for International Law Violations

In dismissing plaintiffs' complaints for lack of subject-matter
jurisdiction, the District Court concluded that the alleged
violations required state action and that the "Bosnian-Serb
entity" headed by Karadzic does not meet the definition of a
state. _Doe_, 866 F. Supp. at 741 n.12. Appellants contend that
they are entitled to prove that Srpska satisfies the definition of
a state for purposes of international law violations and,
alternatively, that Karadzic acted in concert with the recognized
state of the former Yugoslavia and its constituent republic,
Serbia.

(a) _Definition of a state in international law_. The definition
of a state is well established in international law:

Under international law, a state is an entity that has a defined
territory and a permanent population, under the control of its own
government, and that engages in, or has the capacity to engage in,
formal relations with other such entities.

_Restatement (Third)_ kSec. 201; _accord_ _Klinghoffer_, 937 F.2d at
47; _National Petrochemical_, 860 F.2d at 553; _see also_ _Texas
v. White_, 74 U.S. (7 Wall.) 700, 720 (1868). "[A]ny government,
however violent and wrongful in its origin, must be considered a
de facto government if it was in the full and actual exercise of
sovereignty over a territory and people large enough for a
nation." _Ford v. Surget_, 97 U.S. (7 Otto) 594, 620 (1878)
(Clifford, J., concurring).

Although the Restatement's definition of statehood requires the
_capacity_ to engage in formal relations with other states, it
does not require recognition by other states. _See_ _Restatement
(Third)_ Sec. 202 cmt. b ("An entity that satisfies the requirements
of Sec.  201 is a state whether or not its statehood is formally
recognized by other states."). Recognized states enjoy certain
privileges and immunities relevant to judicial proceedings, _see_,
_e.g._, _Pfizer Inc. v. India_, 434 U.S. 308, 318-20 (1978)
(diversity jurisdiction); _Sabbatino_, 376 U.S. at 408-12 (access
to U.S. courts); ___Lafontant_, 844 F. Supp. at 131 (head-of-state
immunity), but an unrecognized state is not a juridical nullity.
Our courts have regularly given effect to the "state" action of
unrecognized states. _See_, _e.g._, _United States v. Insurance
Cos._, 89 U.S. (22 Wall.) 99, 101-03 (1875) (seceding states in
Civil War); _Thorington v. Smith_, 75 U.S. (8 Wall.) 1, 9-12
(1869) (same); _Carl Zeiss Stiftung v. VEB Carl Zeiss Jena_, 433
F.2d 686, 699 (2d Cir. 1970), _cert. denied_, 403 U.S. 905 (1971)
(post-World War II East Germany).

The customary international law of human rights, such as the
proscription of official torture, applies to states without
distinction between recognized and unrecognized states. _See_
___Restatement (Third)_ Secs. 207, 702. It would be anomalous indeed
if non-recognition by the United States, which typically reflects
disfavor with a foreign regime -- sometimes due to human rights
abuses -- had the perverse effect of shielding officials of the
unrecognized regime from liability for those violations of
international law norms that apply only to state actors.

Appellants' allegations entitle them to prove that Karadzic's
regime satisfies the criteria for a state, for purposes of those
international law violations requiring state action. Srpska is
alleged to control defined territory, control populations within
its power, and to have entered into agreements with other
governments. It has a president, a legislature, and its own
currency. These circumstances readily appear to satisfy the
criteria for a state in all aspects of international law.
Moreover, it is likely that the state action concept, where
applicable for some violations like "official" torture, requires
merely the semblance of official authority. The inquiry, after
all, is whether a person purporting to wield official power has
exceeded internationally recognized standards of civilized
conduct, not whether statehood in all its formal aspects exists.

(b) _Acting in concert with a foreign state_. Appellants also
sufficiently alleged that Karadzic acted under color of law
insofar as they claimed that he acted in concert with the former
Yugoslavia, the statehood of which is not disputed. The "color of
law" jurisprudence of 42 U.S.C. Sec. 1983 is a relevant guide to
whether a defendant has engaged in official action for purposes of
jurisdiction under the Alien Tort Act. _See_ _Forti v.
Suarez-Mason_, 672 F. Supp. 1531, 1546 (N.D. Cal. 1987),
_reconsideration granted in part on other grounds_, 694 F. Supp.
707 (N.D. Cal. 1988). A private individual acts under color of law
within the meaning of section 1983 when he acts together with
state officials or with significant state aid. _See_ _Lugar v.
Edmonson Oil Co._, 457 U.S. 922, 937 (1982). The appellants are
entitled to prove their allegations that Karadzic acted under
color of law of Yugoslavia by acting in concert with Yugoslav
officials or with significant Yugoslavian aid.

B. The Torture Victim Protection Act

The Torture Victim Act, enacted in 1992, provides a cause of
action for official torture and extrajudicial killing:

An individual who, under actual or apparent authority, or color of
law, of any foreign nation--

(1) subjects an individual to torture shall, in a civil action, be
liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a
civil action, be liable for damages to the individual's legal
representative, or to any person who may be a claimant in an
action for wrongful death. Torture Victim Act Sec. 2(a). The statute
also requires that a plaintiff exhaust adequate and available
local remedies, _id._ Sec. 2(b), imposes a ten-year statute of
limitations, _id._ Sec. 2(c), and defines the terms "extrajudicial
killing" and "torture," _id._ Sec. 3.

By its plain language, the Torture Victim Act renders liable only
those individuals who have committed torture or extrajudicial
killing "under actual or apparent authority, or color of law, of
any foreign nation." Legislative history confirms that this
language was intended to "make[] clear that the plaintiff must
establish some governmental involvement in the torture or killing
to prove a claim," and that the statute "does not attempt to deal
with torture or killing by purely private groups." H.R. Rep. No.
367, 102d Cong., 2d Sess., at 5 (1991), _reprinted in_ 1992
U.S.C.C.A.N. 84, 87. In construing the terms "actual or apparent
authority" and "color of law," courts are instructed to look to
principles of agency law and to jurisprudence under 28 U.S.C. 
1983, respectively. _Id._

Though the Torture Victim Act creates a cause of action for
official torture, this statute, unlike the Alien Tort Act, is not
itself a jurisdictional statute. The Torture Victim Act permits
the appellants to pursue their claims of official torture under
the jurisdiction conferred by the Alien Tort Act and also under
the general federal question jurisdiction of section 1331, _see_
_Xuncax v. Gramajo_, 886 F. Supp. 162, 178 (D. Mass. 1995), to
which we now turn.

C. Section 1331

The __appellants contend that section 1331 provides an independent
basis for subject-matter jurisdiction over all claims alleging
violations of international law. Relying on the settled
proposition that federal common law incorporates international
law, _see___ _The Paquete Habana_, 175 U.S. 677, 700 (1900); _In
re Estate of Ferdinand E. Marcos Human Rights Litigation_ (_Marcos
I_), 978 F.2d 493, 502 (9th Cir. 1992), _cert. denied_, 113 S. Ct.
2960 (1993); _Filartiga_, 630 F.2d at 886, they reason that causes
of action for violations of international law "arise under" the
laws of the United States for purposes of jurisdiction under
section 1331. Whether that is so is an issue of some uncertainty
that need not be decided in this case.

In _Tel-Oren_ Judge Edwards expressed the view that section 1331
did not supply jurisdiction for claimed violations of
international law unless the plaintiffs could point to a remedy
granted by the law of nations or argue successfully that such a
remedy is implied. _Tel-Oren_, 726 F.2d at 779-80 n.4. The law of
nations generally does not create private causes of action to
remedy its violations, but leaves to each nation the task of
defining the remedies that are available for international law
violations. _Id._ at 778 (Edwards, J., concurring). Some district
courts, however, have upheld section 1331 jurisdiction for
international law violations. _See_ _Abebe Jiri v. Negewo_, No.
90-2010 (N.D. Ga. Aug. 20, 1993), _appeal argued_, No. 93-9133
(11th Cir. Jan. 10, 1995); _Martinez-Baca v. Suarez-Mason_, No.
87-2057, slip op. at 4-5 (N.D. Cal. Apr. 22, 1988); _Forti v.
Suarez-Mason_, 672 F. Supp. 1531, 1544 (N.D. Cal. 1987).

We recognized the possibility of section 1331 jurisdiction in
_Filartiga_, 630 F.2d at 887 n.22, but rested jurisdiction solely
on the applicable Alien Tort Act. Since that Act appears to
provide a remedy for the appellants' allegations of violations
related to genocide, war crimes, and official torture, and the
Torture Victim Act also appears to provide a remedy for their
allegations of official torture, their causes of action are
statutorily authorized, and, as in _Filartiga_, we need not rule
definitively on whether any causes of action not specifically
authorized by statute may be implied by international law
standards as incorporated into United States law and grounded on
section 1331 jurisdiction.

II. Service of Process and Personal Jurisdiction

Appellants aver that Karadzic was personally served with process
while he was physically present in the Southern District of New
York. In the _Doe_ action, the affidavits detail that on February
11, 1993, process servers approached Karadzic in the lobby of the
Hotel Intercontinental at 111 East 48th St. in Manhattan, called
his name and identified their purpose, and attempted to hand him
the complaint from a distance of two feet, that security guards
seized the complaint papers, and that the papers fell to the
floor. Karadzic submitted an affidavit of a State Department
security officer, who generally confirmed the episode, but stated
that the process server did not come closer than six feet of the
defendant. In the _K._ action, the plaintiffs obtained from
Judge Owen an order for alternate means of service, directing
service by delivering the complaint to a member of defendant's
State Department security detail, who was ordered to hand the
complaint to the defendant. The security officer's affidavit
states that he received the complaint and handed it to Karadzic
outside the Russian Embassy in Manhattan. Karadzic's statement
confirms that this occurred during his second visit to the United
States, sometime between February 27 and March 8, 1993. Appellants
also allege that during his visits to New York City, Karadzic
stayed at hotels outside the "headquarters district" of the United
Nations and engaged in non-United Nations-related activities such
as fund-raising.

Fed. R. Civ. P. 4(e)(2) specifically authorizes personal service
of a summons and complaint upon an individual physically present
within a judicial district of the United States, and such personal
service comports with the requirements of due process for the
assertion of personal jurisdiction. _See_ _Burnham v. Superior
Court_, 495 U.S. 604 (1990).

Nevertheless, Karadzic maintains that his status as an invitee of
the United Nations during his visits to the United States rendered
him immune from service of process. He relies on both the
Agreement Between the United Nations and the United States of
America Regarding the Headquarters of the United Nations,
_reprinted at_ 22 U.S.C. Sec. 287 note (1988) ("Headquarters
Agreement"), and a claimed federal common law immunity. We reject
both bases for immunity from service. A. Headquarters Agreement

The Headquarters Agreement provides for immunity from suit only in
narrowly defined circumstances. First, "service of legal process .
consent of and under conditions approved by the
Secretary-General." _Id._ Sec. 9(a). This provision is of no benefit
to Karadzic, because he was not served within the well-defined
confines of the "headquarters district," which is bounded by
Franklin D. Roosevelt Drive, 1st Avenue, 42nd Street, and 48th
Street, _see_ _id._ annex 1. Second, certain representatives of
members of the United Nations, whether residing inside or outside
of the "headquarters district," shall be entitled to the same
privileges and immunities as the United States extends to
accredited diplomatic envoys. _Id._ Sec. 15. This provision is also
of no benefit to Karadzic, since he is not a designated
representative of any member of the United Nations.

A third provision of the Headquarters Agreement prohibits federal,
state, and local authorities of the United States from "impos[ing]
any impediments to transit to or from the headquarters district of
Nations . . . on official business." _Id._ Sec. 11. Karadzic
maintains that allowing service of process upon a United Nations
invitee who is on official business would violate this section,
presumably because it would impose a potential burden -- exposure
to suit -- on the invitee's transit to and from the headquarters
district. However, this Court has previously refused "to extend
the immunities provided by the Headquarters Agreement beyond those
explicitly stated." _See_ _Klinghoffer v. S.N.C. Achille Lauro_,
937 F.2d 44, 48 (2d Cir. 1991). We therefore reject Karadzic's
proposed construction of section 11, because it would effectively
create an immunity from suit for United Nations invitees where
none is provided by the express terms of the Headquarters
Agreement.[FN9]

The parties to the Headquarters Agreement agree with our
construction of it. In response to a letter from plaintiffs'
attorneys opposing any grant of immunity to Karadzic, a
responsible State Department official wrote: "Mr. Karadzic's
status during his recent visits to the United States has been
solely as an `invitee' of the United Nations, and as such he
enjoys no immunity from the jurisdiction of the courts of the
United States." Letter from Michael J. Habib, Director of Eastern
European Affairs, U.S. Dept. of State, to Beth Stephens (Mar. 24,
1993) ("Habib Letter"). Counsel for the United Nations has also
issued an opinion stating that although the United States must
allow United Nations invitees access to the Headquarters District,
invitees are not immune from legal process while in the United
State at locations outside of the Headquarters District. _See_ _In
re Galvao_, [1963] U.N. Jur. Y.B. 164 (opinion of U.N. legal
counsel); _see also_ _Restatement (Third)_ Sec. 469 reporter's note 8
__(U.N. invitee "is not immune from suit or legal process outside
the headquarters district during his sojourn in the United
States").

B. Federal common law immunity

Karadzic nonetheless invites us to fashion a federal common law
immunity for those within a judicial district as a United Nations
invitee. He contends that such a rule is necessary to prevent
private litigants from inhibiting the United Nations in its
ability to consult with invited visitors. Karadzic analogizes his
proposed rule to the "government contacts exception" to the
District of Columbia's long-arm statute, which has been broadly
characterized to mean that "mere entry [into the District of
Columbia] by non-residents for the purpose of contacting federal
government agencies cannot serve as a basis for in personam
jurisdiction," _Rose v. Silver_, 394 A.2d 1368, 1370 (D.C. 1978);
_see also_ _Naartex Consulting Corp. v. Watt_, 722 F.2d 779,
785-87 (D.C. Cir. 1983) (construing government contacts exception
to District of Columbia's long-arm statute), _cert. denied_, 467
U.S. 1210 (1984). He also points to a similar restriction upon
assertion of personal jurisdiction on the basis of the presence of
an individual who has entered a jurisdiction in order to attend
court or otherwise engage in litigation. _See generally_ 4 Charles
A. Wright & Arthur R. Miller, _Federal Practice and Procedure_ Sec.
1076 (2d ed. 1987).

Karadzic also endeavors to find support for a common law immunity
in our decision in _Klinghoffer___. Though, as noted above,
_Klinghoffer_ declined to extend the immunities of the
Headquarters Agreement beyond those provided by its express
provisions, the decision applied immunity considerations to its
construction of New York's long-arm statute, N.Y. Civ. Prac. L. &
R. 301 (McKinney 1990), in deciding whether the Palestine
Liberation Organization (PLO) was doing business in the state.
_Klinghoffer_ construed the concept of "doing business" to cover
only those activities of the PLO that were not United
Nations-related. _See_ 937 F.2d at 51.

Despite the considerations that guided _Klinghoffer_ in its
narrowing construction of the general terminology of New York's
long-arm statute as applied to United Nations activities, we
decline the invitation to create a federal common law immunity as
an extension of the precise terms of a carefully crafted treaty
that struck the balance between the interests of the United
Nations and those of the United States.

Finally, we note that the mere possibility that Karadzic might at
some future date be recognized by the United States as the head of
state of a friendly nation and might thereby acquire head-of-state
immunity does not transform the appellants' claims into a
nonjusticiable request for an advisory opinion, as the District
Court intimated. Even if such future recognition, determined by
the Executive Branch, _see_ _Lafontant_, 844 F. Supp. at 133,
would create head-of-state immunity, _but see_ ___In re Doe_, 860
F.2d 40, 45 (2d Cir. 1988) (passage of Foreign Sovereign
Immunities Act leaves scope of head-of-state immunity uncertain),
it would be entirely inappropriate for a court to create the
functional equivalent of such an immunity based on speculation
about what the Executive Branch _might_ do in the future. _See_
_Mexico v. Hoffman_, 324 U.S. 30, 35 (1945) ("[I]t is the duty of
the courts, in a matter so intimately associated with our foreign
policy . . ., not to enlarge an immunity to an extent which the
government . . . has not seen fit to recognize.").

In sum, if appellants personally served Karadzic with the summons
and complaint while he was in New York but outside of the U.N.
headquarters district, as they are prepared to prove, he is
subject to the personal jurisdiction of the District Court.

III. Justiciability

We recognize that cases of this nature might pose special
questions concerning the judiciary's proper role when adjudication
might have implications in the conduct of this nation's foreign
relations. We do not read _Filartiga_ to mean that the federal
judiciary must always act in ways that risk significant
interference with United States foreign relations. To the
contrary, we recognize that suits of this nature can present
difficulties that implicate sensitive matters of diplomacy
historically reserved to the jurisdiction of the political
branches. _See_ _First National Bank v. Banco Nacional de Cuba_,
406 U.S. 759, 767 (1972). We therefore proceed to consider
whether, even though the jurisdictional threshold is satisfied in
the pending cases, other considerations relevant to justiciability
weigh against permitting the suits to proceed.

Two nonjurisdictional, prudential doctrines reflect the
judiciary's concerns regarding separation of powers: the political
question doctrine and the act of state doctrine. It is the
"`constitutional' underpinnings" of these doctrines that
influenced the concurring opinions of Judge Robb and Judge Bork in
_Tel-Oren_. Although we too recognize the potentially detrimental
effects of judicial action in cases of this nature, we do not
embrace the rather categorical views as to the inappropriateness
of judicial action urged by Judges Robb and Bork. Not every case
"touching foreign relations" is non-justiciable, _see_ _Baker v.
Carr_, 369 U.S. 186, 211 (1962); _Lamont v. Woods_, 948 F.2d 825,
831-32 (2d Cir. 1991), and judges should not reflexively invoke
these doctrines to avoid difficult and somewhat sensitive
decisions in the context of human rights. We believe a preferable
approach is to weigh carefully the relevant considerations on a
case-by-case basis. This will permit the judiciary to act where
appropriate in light of the express legislative mandate of the
Congress in section 1350, without compromising the primacy of the
political branches in foreign affairs.

Karadzic maintains that these suits were properly dismissed
because they present nonjusticiable political questions. We
disagree. Although these cases present issues that arise in a
politically charged context, that does not transform them into
cases involving nonjusticiable political questions. "[T]he
doctrine `is one of "political questions," not one of "political
cases."'" _Klinghoffer_, 937 F.2d at 49 (quoting _Baker_, 369 U.S.
at 217).

A nonjusticiable political question would ordinarily involve one
or more of the following factors:

[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or [2] a lack of
judicially discoverable and manageable standards for resolving it;
or [3] the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning adherence to
a political decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.

_Baker v. Carr_, 369 U.S. at 217; _see also_ _Can v. United
States_, 14 F.3d 160, 163 (2d Cir. 1994). With respect to the
first three factors, we have noted in a similar context involving
a tort suit against the PLO that "[t]he department to whom this
issue has been `constitutionally committed' is none other than our
own -- the Judiciary." _Klinghoffer_, 937 F.2d at 49. Although the
present actions are not based on the common law of torts, as was
_Klinghoffer_, our decision in _Filartiga_ established that
universally recognized norms of international law provide
judicially discoverable and manageable standards for adjudicating
suits brought under the Alien Tort Act, which obviates any need to
make initial policy decisions of the kind normally reserved for
nonjudicial discretion. Moreover, the existence of judicially
discoverable and manageable standards further undermines the claim
such suits relate to matters that are constitutionally committed
to another branch. _See_ _Nixon v. United States_, 113 S. Ct. 732,
735 (1993).

The fourth through sixth _Baker_ factors appear to be relevant
only if judicial resolution of a question would contradict prior
decisions taken by a political branch in those limited contexts
where such contradiction would seriously interfere with important
governmental interests. Disputes implicating foreign policy
concerns have the potential to raise political question issues,
although, as the Supreme Court has wisely cautioned, "it is `error
to suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance.'" _Japan Whaling Ass'n
v. American Cetacean Society_, 478 U.S. 221, 229-30 (1986)
(quoting _Baker_, 369 U.S. at 211).

The act of state doctrine, under which courts generally refrain
from judging the acts of a foreign state within its territory,
_see_ _Banco Nacional de Cuba v. Sabbatino_, 376 U.S. 398, 428;
_Underhill v. Hernandez_, 168 U.S. 250, 252 (1897), might be
implicated in some cases arising under section 1350. However, as
in _Filartiga_, 630 F.2d at 889, we doubt that the acts of even a
state official, taken in violation of a nation's fundamental law
and wholly unratified by that nation's government, could properly
be characterized as an act of state.

In the pending appeal, we need have no concern that interference
with important governmental interests warrants rejection of
appellants' claims. After commencing their action against
Karadzic, attorneys for the plaintiffs in _Doe_ wrote to the
Secretary of State to oppose reported attempts by Karadzic to be
granted immunity from suit in the United States; a copy of
plaintiffs' complaint was attached to the letter. Far from
intervening in the case to urge rejection of the suit on the
ground that it presented political questions, the Department
responded with a letter indicating that Karadzic was not immune
from suit as an invitee of the United Nations. _See_ Habib Letter,
_supra_.[FN10] After oral argument in the pending appeals, this
Court wrote to the Attorney General to inquire whether the United
States wished to offer any further views concerning any of the
issues raised. In a "Statement of Interest," signed by the
Solicitor General and the State Department's Legal Adviser, the
United States has expressly disclaimed any concern that the
political question doctrine should be invoked to prevent the
litigation of these lawsuits: "Although there might be instances
in which federal courts are asked to issue rulings under the Alien
Tort Statute or the Torture Victim Protection Act that might raise
a political question, this is not one of them." Statement of
Interest of the United States at 3. Though even an assertion of
the political question doctrine by the Executive Branch, entitled
to respectful consideraty indicate that Judge Leisure found the
pleading of a violation of the law of nations inadequate because
Srpska, even if a state, is not a state "recognized" by other
nations. "The current Bosnian-Serb warring military faction does
not constitute a recognized state . . . ." _Doe_, 866 F. Supp. at
741; "[t]he Bosnian-Serbs have achieved neither the level of
organization nor the recognition that was attained by the PLO [in
_Tel-Oren v. Libyan Arab Republic_, 726 F.2d 774 (D.C. Cir.
1984)]," _id._ However, the opinion, read as a whole, makes clear
that the Judge believed that Srpska is not a state and was not
relying on lack of recognition by other states. _See_, _e.g._,
_id._ at 741 n.12 ("The Second Circuit has limited the definition
of `state' to `entities that have a defined [territory] and a
permanent population, that are under the control of their own
government, and that engage in or have the capacity to engage in,
formal relations with other entities.' _Klinghoffer v. S.N.C.
Achille Lauro_, 937 F.2d 44, 47 (2d Cir. 1991) (quotation,
brackets and citation omitted). The current Bosnian-Serb entity
fails to meet this definition." We quote Judge Leisure's quotation
from _Klinghoffer_ with the word "territory," which was
inadvertently omitted.


(3) Section 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 violations of internationally
recognized human rights.


(4) Section 404 provides:

A state has jurisdiction to define and prescribe punishment for
certain offenses recognized by the community of nations as of
universal concern, such as piracy, slave trade, attacks on or
hijacking of aircraft, genocide, war crimes, and perhaps certain
acts of terrorism, even where [no other basis of jurisdiction] is
present.


(5) Judge Edwards was the only member of the ___Tel-Oren_ panel to
confront the issue whether the law of nations applies to non-state
actors. Then-Judge Bork, relying on separation of powers
principles, concluded, in disagreement with _Filartiga_, that the
Alien Tort Act did not apply to most violations of the law of
nations. _Tel-Oren_, 726 F.2d at 798. Judge Robb concluded that
the controversy was non-justiciable. _Id._ at 823.


(6) The Senate Report merely repeats the language of section 1092
and does not provide any explanation of its purpose. _See_ S. Rep.
333, 100th Cong., 2d Sess., at 5 (1988), _reprinted at_ 1988
U.S.C.C.A.N. 4156, 4160. The House Report explains that section
1092 "clarifies that the bill creates no _new_ federal cause of
action in civil proceedings." H.R. Rep. 566, 100th Cong., 2d
Sess., at 8 (1988) (emphasis added). This explanation confirms our
view that the Genocide Convention Implementation Act was not
intended to abrogate civil causes of action that might be
available under _existing_ laws, such as the Alien Tort Act.


(7) Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, _entered into
force_ Oct. 21, 1950, _for the United States_ Feb. 2, 1956, 6
U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31 (hereinafter "Geneva
Convention I"); Convention for the Amelioration of the Condition
of the Wounded, Sick, and Shipwrecked Members of Armed Forces at
Sea, _entered into force_ Oct. 21, 1950, _for the United States_
Feb. 2, 1956, 6 U.S.T. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85;
Convention Relative to the Treatment of Prisoners of War, _entered
into force_ Oct. 21, 1950, _for the United States_ Feb. 2, 1956, 6
U.T.S. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135; Convention Relative
to the Protection of Civilian Persons in Time of War, _entered
into force_ Oct. 21, 1950, _for the United States_ Feb. 2, 1956, 6
U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287.


(8) Appellants also maintain that the forces under Karadzic's
command are bound by the Protocol Additional to the Geneva
Conventions of 12 August 1949, Relating to the Protection of
Victims of Non-International Armed Conflicts, 16 I.L.M. 1442
(1977) ("Protocol II"), which has been signed but not ratified by
the United States, _see_ International Committee of the Red Cross:
_Status of Four Geneva Conventions and Additional Protocols I and
II_, 30 I.L.M. 397 (1991). Protocol II supplements the fundamental
requirements of common article 3 for armed conflicts that "take
place in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed
groups which, under responsible command, exercise such control
over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this
Protocol." _Id._ art. 1. In addition, plaintiffs argue that the
forces under Karadzic's command are bound by the remaining
provisions of the Geneva Conventions, which govern international
conflicts, _see_ Geneva Convention I art. 2, because the
self-proclaimed Bosnian-Serb republic is a nation that is at war
with Bosnia-Herzegovina or, alternatively, the Bosnian-Serbs are
an insurgent group in a civil war who have attained the status of
"belligerents," and to whom the rules governing international wars
therefore apply.

At this stage in the proceedings, however, it is unnecessary for
us to decide whether the requirements of Protocol II have ripened
into universally accepted norms of international law, or whether
the provisions of the Geneva Conventions applicable to
international conflicts apply to the Bosnian-Serb forces on either
theory advanced by plaintiffs.


(9) Conceivably, a narrow immunity from service of process might
exist under section 11 for invitees who are in _direct_ transit
between an airport (or other point of entry into the United
States) and the Headquarters District. Even if such a narrow
immunity did exist -- which we do not decide -- Karadzic would not
benefit from it since he was not served while traveling to or from
the Headquarters District.

(10) The Habib letter on behalf of the State Department added:

We share your repulsion at the sexual assaults and other war
crimes that have been reported as part of the policy of ethnic
cleansing in Bosnia-Herzegovina. The United States has reported
rape and other grave breaches of the Geneva Conventions to the
United Nations. This information is being investigated by a United
Nations Commission of Experts, which was established at U.S.
initiative.