Handel v. Artukovic

• Decision Date: 31 January 1985
• Docket Number: No. CV 84-1411-PAR(Kx).,CV 84-1411-PAR(Kx).
• Citation: 601 F. Supp. 1421
• Parties: Leo HANDEL, Leon and Shari Kabiljo, and Isaac and Hanna Handy, on behalf of themselves and all other situated persons, Plaintiffs, v. Andrija ARTUKOVIC, a/k/a Alois Anich, a/k/a David Arnaut, on behalf of himself and as representative of the Independent Government of the State of Croatia, Defendant.
• Court: U.S. District Court — Central District of California

601 F. Supp. 1421

Leo HANDEL, Leon and Shari Kabiljo, and Isaac and Hanna Handy, on behalf of themselves and all other situated persons, Plaintiffs, v. Andrija ARTUKOVIC, a/k/a Alois Anich, a/k/a David Arnaut, on behalf of himself and as representative of the Independent Government of the State of Croatia, Defendant.

No. CV 84-1411-PAR(Kx).

United States District Court, C.D. California.

January 31, 1985.

COPYRIGHT MATERIAL OMITTED

Marc M. Seltzer, Corinblit, Shapero & Seltzer; Alschuler, Grossman & Pines, Los Angeles, Cal., Michael D. Hausfeld, Kohn, Milstein, Cohen & Hausfeld; Finley, Kumble, Wagner, Heine, Underberg & Casey; Martin Mendelsohn, Washington, D.C., Coleman R. Rosenfield, Hollywood, Fla., for plaintiffs.

Richard A. Perkins, Los Angeles, Cal., for defendant.

David A. Lehrer, Los Angeles, Justin Finger, Jeffrey P. Sinensky, Ruti G. Teitel, New York City, amicus curiae for Anti-Defamation League of B'nai B'rith.

Joan Hartman, Paul Hoffman, Kay Huff, Ralph Steinhardt, Los Angeles, Cal., amicus curiae for ACLU Foundation.

MEMORANDUM OF DECISON AND ORDER

RYMER, District Judge.

Plaintiffs in this class action seek compensatory and punitive damages against defendant for his alleged involvement in the deprivations of life and property suffered by the Jews in Yugoslavia during World War II. The complaint, which must be taken as true for purposes of this motion, alleges that defendant was the Commissioner of Public Security and Internal Administration and later the Minister of the Interior for the Independent State of Croatia, a puppet state of the German Reich established after its invasion of the Kingdom of Yugoslavia. In his official capacity, defendant oversaw and implemented Croatia's solution to "the Jewish question." The result of defendant's implementation of this policy was the passage of anti-Jewish legislation; the seizure of property owned by Croatian Jews; and the imprisonment and eventual execution of tens of thousands of Jewish men, women, and children.

The complaint avers that defendant fled Croatia in 1945, and that he entered this country illegally in 1949. In May 1951, defendant was the subject of deportation proceedings. These proceedings eventually culminated in the grant to defendant in 1959 of a temporary stay of deportation, and defendant has remained in the United States until the present. Plaintiffs state that they were Jewish citizens of Yugoslavia in 1941, and each had close relatives who were murdered under the auspices of Croatian authority. All of the plaintiffs are now United States citizens.

In their complaint, plaintiffs state four causes of action: (1) violation of the Hague Convention of 1907 and the Geneva Convention of 1929; (2) war crimes in violation of international law; (3) crimes against humanity in violation of international law; and (4) violation of Articles 100, 125, 141, and 145 of the Yugoslavian Criminal Code. Jurisdiction for the first three causes of action is based on 28 U.S.C. § 1331; jurisdiction over the fourth claim is predicated upon diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2). Defendant has moved to dismiss under Fed.R.Civ.P. 12(b)(1) and (6).

After having considered the briefs of the parties and the amici as well as the voluminous exhibits submitted in this case, the Court concludes that the international law claims should be dismissed under Fed.R. Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The war crime and crime against humanity claims are also barred by the statute of limitations, and therefore fail to state a claim for relief. Fed.R.Civ.P. 12(b)(6). The Court finds that the Yugoslavian law claim is barred by the applicable statute of limitations; and that to apply Yugoslavian substantive law as requested would in any event be unconstitutional under United States law as well as unenforceable under Yugoslavian and international law. The Yugoslavian law count therefore also fails to state a claim upon which relief can be granted.¹

I. Violation of the Hague and Geneva Conventions.

Pursuant to 28 U.S.C. § 1331, the Court has jurisdiction over actions "arising under" the "Constitution, laws, or treaties" of the United States. In plaintiffs' third count, they assert a cause of action under two United States treaties: the Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 ("Hague Convention"); and the Convention Between the United States of America and other Powers Relating to Prisoners of War, July 27, 1929, 47 Stat. 2021 (1932), revised in Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135 ("Geneva Convention").

Treaties of the United States rarely bear such a direct relationship to a private claim that the claim may be said to "arise under" the treaty as required by section 1331. See 13B Wright, Miller & Cooper, Federal Practice & Procedure-Jurisdiction § 3562 (1984). In the absence of authorizing legislation, an individual may enforce a treaty's provisions only when it is self-executing, i.e., when it expressly or impliedly provides a private right of action. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976).

The Court must look to the treaty as a whole to determine whether it is self-executing. Diggs v. Richardson, 555 F.2d 848, 851 (D.C.Cir.1976). Four factors are relevant to such a determination:

The extent to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined in each case by reference to many contextual factors: 1 the purposes of the treaty and the objectives of its creators, 2 the existence of domestic procedures and institutions appropriate for direct implementation, 3 the availability and feasibility of alternative enforcement methods, and 4 the immediate and long-range social consequences of self- or non-self-execution.

People of Saipan v. United States Dep't of Interior, 502 F.2d 90, 97 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975).

Applying these factors to the two treaties before the Court, it is clear that neither the 1929 Geneva Convention nor the Hague Convention was intended to establish judicially enforceable obligations. In Article 129 of the 1949 Geneva Convention that adopted and revised the 1929 agreement, the signatory countries specifically provided for implementation through municipal law. A treaty which provides that signatory states will take measures through their own laws to enforce its provisions evinces an intent that the treaty not be self-executing. See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253, 311-14, 7 L.Ed. 415 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. (7 Pet.) 51, 8 L.Ed. 604 (1833). As a result, the Geneva Convention does not offer plaintiffs a private right of action. See Tel-Oren, 726 F.2d at 809 (Bork, J., concurring).

Unlike the Geneva Convention, there is no provision in the Hague Convention for implementation by the party states. However, the consequences of implying self-execution compel the conclusion that the treaty is not a source of rights enforceable by an individual litigant in a domestic court. Recognition of a private remedy under the Convention would create insurmountable problems for the legal system that attempted it; would potentially interfere with foreign relations; and would pose serious problems of fairness in enforcement. As pointed out by Judge Bork in his opinion in Tel-Oren:

The code of behavior the Conventions set out could create perhaps hundreds of thousands or millions of lawsuits by the many individuals, including prisoners of war, who might think their rights under the Hague Convention violated in the course of any large-scale war. Those lawsuits might be far beyond the capacity of any legal system to resolve at all, much less accurately and fairly; and the courts of a victorious nation might well be less hospitable to such suits against that nation or the members of its armed forces than the courts of a defeated nation might, perforce, have to be. Finally, the prospect of innumerable private suits at the end of a war might be an obstacle to the negotiation of peace and the resumption of normal relations between nations.

726 F.2d at 810 (Bork, J., concurring). Accord, Dreyfus, 534 F.2d at 30. No court in the seventy eight years since the Convention's adoption has concluded that the treaty was self-executing. For the reasons that Judge Bork outlined, this Court agrees that non-self-execution is the appropriate result.

Thus, neither of the treaties relied upon by plaintiffs gives them a private right of action "arising under" the treaties within the meaning of section 1331. The first count therefore must be dismissed for want of jurisdiction under Rule 12(b)(1).

II. Violation of Customary International Law.

Plaintiffs' second and third claims for relief are based on alleged violations of the laws of war² and the laws of humanity. Two issues are presented by these claims: first, whether the Court has jurisdiction over such claims under section 1331; and second, if the Court does have jurisdiction, whether plaintiffs have stated a cognizable claim for relief under international law. The Court concludes that it does not have jurisdiction under section 1331, and, even if it did, plaintiffs fail to state a claim upon which relief may be granted.

A. Jurisdiction under Section 1331.

Plaintiffs' international law claims, like their treaty claims, must "arise under" the "laws of the United States" for jurisdiction to lie. It is clear that the law of nations "is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of...