Full opinion text
DECISION AND ORDER MARRERO, District Judge. TABLE OF CONTENTS PAGE BACKGROUND.264 FACTS .265 DISCUSSION.268 I. HEAD-OF-STATE IMMUNITY.268 A. ABSOLUTE SOVEREIGN IMMUNITY DOCTRINE: THE SCHOONER EXCHANGE.268 B. RESTRICTIVE IMMUNITY.270 1. The Tate Letter.270 2. The Foreign Sovereign Immunities Act.272 3. Post-FSIA Effects and Development.278 4. FSIA Case Law.281 a. Chuidian.281 b. Aristide.284 c. Beyond Chuidian and Aristide.288 d. Plaintiffs’ Authorities Distinguished.293 II. DIPLOMATIC IMMUNITY.297 III. PERSONAL INVIOLABILITY.302 IV. JURISDICTION..309 A. PERSONAL JURISDICTION.309 B. SUBJECT MATTER JURISDICTION.309 1. The Alien Tort Claims Act. CO r — i CO 2. The Torture Victim Protection Act hO r — l CO V. CONCLUSION. .316 ORDER . .318 Plaintiffs (hereinafter referred to collectively as “Plaintiffs”) are citizens of Zimbabwe. They brought this suit as a class action in their own names and on behalf of other similarly situated Zimbabweans who Plaintiffs claim have suffered from wrongful actions they attribute to defendants. Plaintiffs’ claims are lodged against Robert Gabriel Mugabe (hereinafter “Mugabe”), who is the President of Zimbabwe; Stan Mudenge (hereinafter “Mudenge”), Zimbabwe’s Foreign Minister; and Jonathan Moyo, Minister for Information and Publicity of Zimbabwe; as well as against the Zimbabwe African National Union-Patriotic Front (“ZANU-PF”), the Zimbabwe government’s ruling political party of which Mugabe is First Secretary and President, and Mudenge and Moyo are senior officers. As jurisdictional and substantive grounds for their action Plaintiffs invoke the Alien Tort Claims Act (“ATCA”), the Torture Victim Protection Act (“TVPA”), the general federal question jurisdictional statute, and fundamental norms of international human rights law. BACKGROUND The principles at issue in this case hold ancient roots. They trace to a time when the concept of the sovereign embodied a dual meaning. It stood for both the abstract nation and the corporeal person of its ruler: the State was the monarch and the monarch was the State. The echoes of that notion resound most prominently in words that issue from the anden regime, when perhaps not at all in haughty jest, but in a pointed reflection of then perceived reality, France’s King Louis XIV, in his enduring remark “L’état, c’est moi”, proclaimed the state and himself synonymous. Old ideas die hard. And so, the core of the controversy now before the Court tests the residual vigor of a political and legal legacy of sovereign antiquity. At issue is whether and to what degree the duality that was once assumed as a truism of sovereignty, as though emanating from divine right, may still survive as a binding equation in a doctrine of sovereign immunity for a foreign head-of-state that would preclude this Court, as the United States Government here urges, from extending jurisdiction over the foreign government leaders here, no matter how grievous or unofficial the wrongs they are called upon to answer. Conversely, Plaintiffs advance a more expansive theory. In essence, they posit that the concept of sovereignty has evolved, and that with it the traditional principles governing sovereign immunity changed, the world of these ideas over time scooped by the arcs of new realities above them, yielding ground to a modern age that, both in symbol and in fact, has witnessed “Diadems drop, and Doges surrender.” According to this view, in the ensuing progress of events and enlightened principles, the Court may find enough support to ground its exercise of judicial power over the foreign officials here. In the final analysis, as this Court concludes, the instant case is one in which hopes outpace remedy, personal demands for justice run higher than the availability of full and immediate legal recourse in this forum. The progression of the legal precepts and theories Plaintiffs here invoke, despite critical strides marked in recent years, still trails behind human aspirations and has some time and way to go to close the gap. Consequently, on the circumstances now before the Court, the measure of justice necessarily is gauged on a scale some may feel does not fully reckon all that is seen and unseen, and whose standards may account, perhaps disproportionately, for things not altogether discernible. Nonetheless, for the reasons described below the Court accepts the State Department’s Suggestion of Immunity on behalf of Mugabe and Mudenge and dismisses the action as to them. Plaintiffs’ motion for entry of a default judgment against ZANU-PF, however, is granted. FACTS The complaint asserts that the ZANU-PF led by President Mugabe and the other individual defendants acting in their personal capacities and as senior officers of ZANU-PF, planned and executed a campaign of violence designed to intimidate and suppress its burgeoning but peaceful political opposition, the Movement for Democratic Change (“MDC”). Specifically, Plaintiffs charge that defendants’ lawless conduct included “murder, torture, terrorism, rape, beatings, and destruction of property ....” For reasons discussed below and critical to the legal dispute at hand, Plaintiffs stress that the violent deeds associated with this campaign were all perpetrated by defendants and other agents of ZANU-PF acting individually, not by the government of Zimbabwe nor by Mugabe and Mudenge carrying out any public mandate or official duties. The complaint and supporting materials graphically depict acts of brutality this campaign inflicted upon its intended victims. For present purposes, the Court accepts the uncontested assertions that the violence and wrongs Plaintiffs allege fall squarely within the conduct encompassed by the ATCA and TVPA and proscribed by universally recognized human rights norms. On this basis, the Court adopts as findings of fact that, by reason of their support for the MDC, Tapfuma Chiminya, Metthew Pfebve, and David Stevens were all extrajudicially murdered; Metthew Pfebve and David Stevens were tortured; Efridah Pfebve and Evelyn Masaiti were attacked and beaten; and all of the named and unnamed Plaintiffs were in other ways terrorized by operatives of ZANU-PF operating in concert with or significantly aided by high-ranking Zimbabwe government officials acting under color of state law. The actions taken against these individuals were part of an organized political campaign that occurred during the four-months preceding Zimbabwe’s June 2000 Parliamentary elections. The violent drive was implemented, according to Plaintiffs, by ZANU-PF members who were trained and directed from the highest levels of ZANU-PF, and who acted pursuant to Mugabe’s orders given through ZANU-PF’s chain of command. Moreover, this effort was designed to intimidate all of ZANU-PF’s political opposition through harassment, physical attacks and even assassination of targeted individuals. The specific acts that comprise this conduct are set forth in considerable detail in the complaint and related documents in the record. For example, Plaintiffs assert that private individuals occupying a ZANU-PF vehicle attacked MDC members in a car on their way from fihng a report with the police concerning a beating of another MDC member. After severely beating the three occupants of the car, the attackers then doused two of the occupants with gasoline and set them on fire. The ZANU-PF vehicle and the perpetrators remained at the scene while the victims burned. In addition, police officers in a vehicle nearby stopped at a distance and, though observing the MDC car in flames and the burning people, made no effort to stop the attack or the ZANU-PF vehicle when it fled from the scene. Instead, after the ZANU-PF vehicle had departed, the police sought, but were too late, to render assistance to the victims. One of the individuals who died in the attack was the late husband of the lead plaintiff in this case. In support of their factual assertions, and as confirmation of the concerted violence and lawlessness portrayed by the incidents described in the complaint, Plaintiffs cite to contemporary international expressions of concern and condemnation of events in Zimbabwe. They point, for example, to a U.S. Senate bill passed in 2000 condemning the campaign of violence that the ZANU-PF had “orchestrated and supported,” and that continued at Mugabe’s “explicit and public urging”. Likewise, the European Parliament adopted a series of resolutions expressing concern over human rights abuses allegedly perpetrated by Mugabe and ZANU-PF and resolved to condemn “the sustained campaign of murder, violence, intimidation and harassment by President Mugabe and the ruling ZANU-PF Party against political opponents, farm workers, white farmers, and homosexuals.” This resolution also found that “the ongoing breakdown in the rule of law in Zimbabwe is the direct result of the renewed cycle of violence initiated by President Mugabe against his political opponents” and deplored the treatment of Zimbabwe’s Chief Justice, who was forced into retirement, and death threats reported against other judges. Plaintiffs also point to press reports of these events, and to an Amnesty International finding that “[djuring the election campaign leading up to the parliamentary elections in June 2000 a pattern of violations that included extrajudicial execution and torture emerged.” Plaintiffs served Mugabe and Mudenge with their pleadings while the officials were in New York City attending a conference at the United Nations. To avoid particular diplomatic immunity rules that apply within United Nations Headquarters Area, Plaintiffs arranged to serve process outside the boundaries of that district. Specifically, Plaintiffs assert that they served Mugabe as he arrived at an unofficial gathering organized by a private New York group which reportedly raises money for defendants under the name “Friends of the ZANU-PF” and which has nothing at all to do with the United Nations or the United States government. According to Plaintiffs, Mugabe chose to speak at this unofficial function precisely in order to defend his actions in Zimbabwe; to galvanize support for ZANU-PF; and to lobby the American public in opposition to legislation then pending before the U.S. Senate condemning ZANU-PF’s campaign of violence. Defendants defaulted without any appearance before the Court. After Plaintiffs moved for entry of a default judgment, Mugabe and Mudenge submitted to the State Department a request for immunity. On February 23, 2001, the State Department responded by filing a Suggestion of Immunity on behalf of Mugabe and Mudenge. The Suggestion of Immunity asserts that the State Department informed the Department of Justice that the “Department of State recognizes and allows the immunity of President Mugabe and Foreign Minister Mudenge from this suit” and that “permitting this action to proceed against the President and Foreign Minister would be incompatible with the United States’ foreign policy interests.” In connection with the Suggestion, the Government now urges dismissal of Plaintiffs’ claims against Mugabe and Mudenge, and an order quashing or nullifying service of process against them. The Government’s request asserts three grounds in support of this result: (1) head-of-state immunity; (2) diplomatic immunity; and (3) personal inviolability attaching to both Mugabe and Mudenge. These theories and Plaintiffs’ responses are discussed in turn below. DISCUSSION I. HEAD-OF-STATE IMMUNITY A. ABSOLUTE SOVEREIGN IMMUNITY DOCTRINE: THE SCHOONER EXCHANGE One legal manifestation of the longstanding conceptual identity of ruler and state, conveying the personification of the sovereign nation in the head-of-state, is the traditional doctrine of absolute sovereign immunity. This theory held that unless the protection were expressly waived, the sovereign state, acting through its officers and agents, was not subject to the jurisdiction of the judiciary, at least for acts taken by government agents in an official capacity. In the context of foreign nations, this principle was given expression and recognition early in American jurisprudence by the Supreme Court’s 1812 decision in The Schooner Exchange v. McFaddon, a case which “came to be regarded as extending virtually absolute immunity to foreign sovereigns.” There, McFaddon, claiming to be the rightful owner of an armed merchant vessel in the service of France, sought a court order to attach the ship when it sailed into an American port. Chief Justice Marshall ruled that, under an implied grant of immunity by the United States, a public armed ship of a friendly foreign nation, though having entered territory of this country, was exempt from the exercise of jurisdiction of United States courts. The Schooner Exchange elaborated four enduring principles which form the cornerstone of foreign sovereign immunity jurisprudence and are central to the resolution of the issues at hand. First, Chief Justice Marshall observed that the jurisdiction of a sovereign state within its own territory, which derives from the perfect equality and independence of every nation and of which the jurisdiction of its courts is a component, “is necessarily exclusive and absolute,” subject to “no limitation not imposed by itself.” Second, this full and absolute jurisdiction, an attribute of every sovereign, is incapable of conferring extra-territorial power and “would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects,” but by “common interest impel[s] them to mutual intercourse.” By this statement, The Schooner Exchange articulates the principles of comity and reciprocity which serve as the bedrock for the doctrine of sovereign immunity: One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. Third, all exceptions to the nation’s exercise of jurisdiction within its territories “must be derived from the 'consent of the sovereign of the territory”, which consent may be expressed or implied. The Court then identifies three circumstances under which every sovereign, recognizing the common interest impelling mutual cooperation, is understood to waive a part of its absolute territorial jurisdiction: (1) the exemption of the person of the sovereign from arrest or detention within a foreign territory; (2) the immunity allowed to foreign ministers, ambassadors and other diplomats; and (8) the assent to the passage of foreign troops, a subset of which is the entry of friendly foreign naval ships into domestic ports. Noteworthy in this classification, and a vital point to which this Court returns below, is the distinction Chief Justice Marshall draws between the exemption conferred upon the 'person of the sovereign to be free from arrest or detention while present within a foreign territory, and, as a separate category, the immunity of diplomatic ministers abroad. Fourth, and of particular interest here, Chief Justice Marshall admitted to some potential limitation to both the traditional identity of the sovereign and ruler and to the absoluteness of the sovereign’s immunity. He noted, without expressing an opinion, the difference between “the private property of the person who happens to be a prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation.” As regards the former, the Chief Justice makes an observation that presaged the basis and course for later changes in the law and anticipated disputes such as that now before this Court. He remarked: A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual. Significantly, reflecting the common understanding that then conflated the sovereign nation and its ruler, Chief Justice Marshall throughout the opinion refers to the state and the “prince” as one, and describes the state, anthropomorphically transfigured in the person of the sovereign prince, as “he” and “him”. Both doctrinally and in practice, because the sovereign and the head-of-state were deemed to be the same, the fusion translated into a principle of immunity that, under customary international law, developed and was recognized as similarly unitary and coextensive. Prior to 1976, the case law and commentary record very few, if any, instances in which a claim for exercise of jurisdiction over a head-of-state was asserted personally against the ruler of a nation, separate and apart from the sovereign state the leader personified. B. RESTRICTIVE IMMUNITY 1. The Tate Letter The theory of absolute sovereign immunity, incorporating the conceptual unity of sovereign and ruler that The Schooner Exchange articulated, served as controlling principle in foreign state immunity controversies in this country until 1952. As the doctrine was ultimately formulated by the Supreme Court, "it is a guiding principle in determining whether a court should exercise or surrender its jurisdiction [in actions against foreign states], that the courts should not act as to embarrass the executive arm in its conduct of foreign affairs. Tn such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.’ ” Thus, upon a formal assertion by the Executive Branch that a foreign state or entity sued in the United States was entitled to sovereign exemption from jurisdiction, the courts were obligated to honor the total immunity that recognition conferred and to dismiss the action. By 1952 several developments had converged to bring about substantive change away from the absolute sovereign immunity doctrine. Following significant increases in international commerce and changes in state economic systems that occurred after World War II, many countries altered their foreign relations practices to conform to a restrictive theory of sovereign immunity. Under this approach, an exception to state immunity was carved for foreign sovereign activities that were strictly commercial, thus limiting the absolute exemption from exercise of national jurisdiction over foreign states solely to disputes arising from public actions inherently within the sphere of governmental functions. The change was prompted partly in response to the rapid rise in the number of countries that had adopted socialist or communist governments that nationalized major industries and conducted international commerce through state-owned or controlled entities. These means of trade produced competitive disadvantages and resulting injustices for other states and private parties that engaged in commerce with state-dominated enterprises. For example, in litigation arising from commercial disputes over the non-performance of contracts or other wrongful conduct, it became commonplace for these entities to hide behind the near-fiction that they were the state, and to assert sovereign immunity as an absolute defense, thereby erecting a shield against all liability for their obligations and damages. In the United States, a doctrinal watershed occurred in 1952 with the Department of State’s promulgation of a new policy enunciated in a communication to the Justice Department. The Tate Letter, as it was called, put other nations on notice that the United States, in considering foreign governments’ requests for sovereign immunity, would thereafter follow the restrictive theory of sovereign immunity. The Tate Letter explicitly declared that the decisive considerations impelling the policy shift comprised two elements: the increasing practice on the part of (1) governments engaging in (2) commercial activities. These developments made necessary a means to enable persons doing business with state enterprises “to have their rights determined in the courts.” Significantly, neither the Tate Letter, nor other authority then reflecting on generally prevailing practice or customary international law, made mention of controversies involving claims of individual immunity for sovereigns, represented in the person of the country’s ruler, from the jurisdiction of the courts over matters relating to non-governmental transactions, commercial or otherwise, undertaken in their private or public capacities. In practice, the State Department implemented the modified policy by issuing guidance, in the form of “suggestions of immunity”, in particular court cases in which the United States deemed its intervention appropriate. In those cases, the courts, in accordance with the Supreme Court’s mandate in Ex Parte Peru, uniformly deferred to the Executive Branch’s assertions as conclusive on judicial determinations of foreign state immunity. But the practical application of the Tate Letter policy and the results it yielded proved unsatisfactory. The distinction between a state’s commercial activities and strictly governmental functions was not always clear. Often, the State Department’s immunity determinations were not based on consistent or coherent standards, nor on established internal adjudicatory procedures. At times these determinations worked to the State Department’s own embarrassment; to the displeasure of the private and public commercial interests sacrificed to diplomatic and political considerations; or to the growing discomfort and uninhibited consternation of the courts. State Department “suggestions” often were issued on the basis of the foreign government’s political and diplomatic pressures on the Executive Branch and similar situations yielded different outcomes. Moreover, the courts were left without objective rules of law to apply in cases where the foreign state did not request immunity, or the State Department chose not to intervene. As a consequence, sovereign immunity determinations were made by two branches of the government based on varying standards and considerations not always clearly compatible or uniformly applied. The perceived politicization of the sovereign immunity process engendered mounting concern all around. 2. The Foreign Sovereign Immunities Act General dissatisfaction with application of the Tate Letter’s policy change motivated the passage of the Foreign Sovereign Immunities Act of 1976 (the “FSIA” or the “Act”). The statute, intended to adopt “comprehensive rules governing sovereign immunity”, embodied two major objectives. It established as United States foreign relations practice the restrictive doctrine of sovereign immunity enunciated in the Tate Letter, thereby strictly limiting foreign states’ immunity from the jurisdiction of United States courts to actions grounded on public or governmental functions. Accordingly, the Act denied sovereign immunity to foreign public entities for disputes arising out of their commercial ventures that are no different from ordinary private business transactions. The FSIA’s major departure was its removal of the State Department’s former role in the foreign state immunity process: it transferred “the determination of sovereign immunity from the executive branch to the judicial branch.” Like the Tate Letter whose policy shift it codified, the intent of the FSIA as manifested in its text and legislative history evinces preoccupation with “commercial activities” of “foreign states” and with according protection to corresponding interests of litigants who have dealings, and are engaged in legal disputes, with a “foreign government entity.” Instructive in conveying the distinction expressed during Congress’ deliberations on the FSIA is the testimony on behalf of the Executive Branch by a witness from the Department of Justice. Describing how the proposed legislation would operate to permit suits in United States courts against foreign state-owned entities — such as Lufthansa, West Germany’s national airline — that were engaged in ordinary commercial activities, he clarified that: “Now we are not talking, Congressmen, in terms of permitting suit against the Chancellor of the Federal Republic ... [t]hat is an altogether different question.” That overarching concern with a foreign state’s ordinary commercial transactions is given expression in the FSIA’s text and legislative record in several ways. First, in its legislative findings, Congress declared that “the determination by United States courts of the claims of foreign states to immunity would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts.” Further, Congress noted that under international law “states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned .... [Cjlaims of foreign states to immunity should henceforth be decided by courts of the United States... in conformity with the principles set forth in [the Act].” In this connection, substantial deliberation in the drafting and debate was devoted to the legal and practical difficulties encountered in defining and distinguishing between public and private commercial activities. Second, the integral connection of the immunity exclusions to both “commercial activities” and “foreign states” is further underscored by the Act’s language defining “foreign state.” The context the statute reflects is couched in words imbued with commercial purpose and usage. The term “foreign state” is meant to encompass an “agency or instrumentality of a foreign state”, which in turn is defined as any entity “(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political division thereof.” Apparently, Congress intended this definition to be exclusive. The House Subcommittee, in its report on the bill, indicated “an entity which does not fall within the definitions of § 1603(a) or (b) would not be entitled to sovereign immunity in any case before a Federal or State Court.” Third, the Act adopts several specific exemptions as to which, depending on the particular activity, “a foreign state” would no longer be entitled to assert immunity from the jurisdiction of courts in the United States. With regard to the commercial exception, it provides that sovereign immunity is not available in any case in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. In determining the scope of commercial activity the Act contemplates that the nature of such activity “shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” The FSIA also created an exception applicable to certain torts encompassing actions in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office of employment. Fourth, Congress evidenced concern that United States sovereign immunity practice “conform to the practice in virtually every other country.” The theory and practice of foreign state immunity then understood by the community of nations and applied as customary international law, similarly reflected paramount concern over foreign entities’ commercial activities and embodied rules empirically deriving from and addressing that context. Finally, language in the legislative history indicates that Congress intended to devise rules to resolve claims of sovereign immunity of foreign states without in any way affecting established practice governing suits involving diplomatic or consular representatives. Palpably absent from the FSIA legislative history and prior practice is any specific reference to the particular issues in contention before this Court: (1) the scope of FSIA jurisdictional exemption, if any, intended to reach: (a) individuals, as opposed to state “agencies or instrumentalities”, in particular, (b) the head-of-state, as distinct from the state itself; (c) private unofficial acts, as distinguished from actions attributable to the foreign state taken by government officials within the scope of their public duties; (d) private conduct of non-state persons or entities with which the head-of-state or other high ranking government leaders may be affiliated; and (2) as regards consideration of the foregoing issues, the extent of any remaining role the Department of State may play in suggesting foreign sovereign immunity in actions before the courts, and the effect the courts should accord to such expressions of interest made on behalf of the Executive Branch. In fact, during the fifteen years that spanned the issuance of the Tate Letter and the enactment of the FSIA the bulk of sovereign immunity litigation recorded, not only in United States courts but in other countries, entailed commercial disputes involving foreign state public entities. In a compilation of sovereign immunity decisions covering this period, the State Department reported only two instances in which immunity determinations related specifically to suits brought against heads-of-state. And the limited precedent that did exist may suggest that the sovereign officials there may have been named routinely, either for tactical pleading purposes or as surrogates for the state itself. In this precedential void, as Plaintiffs here acknowledge, the courts, on the few occasions in which the principle of sovereign immunity was asserted in connection with an action filed against a head-of-state, regarded the conceptual issue as subsumed within the recognized principle of absolute sovereign immunity for states and governed by The Schooner Exchange doctrine. This treatment suggested the existence of a unified theory of sovereign immunity integrating the traditional notion that the sovereign and its ruler were one and the same, concepts that had not yet branched into distinct doctrines subject to their own separate policies, standards and applications. The courts’ view in this country was indeed consistent with prevailing norms and practices then accepted abroad as customary international law. One leading authority, referencing the growing volume of precedents and detailed rules reflecting restrictions promulgated by governments to limit claims of foreign state immunity, noted: “[b]ut none of this large and complex body of international law has been drawn up with the position of heads of state in mind.” The central issue left unaddressed by legislative history is the one the parties before the Court here argue: whether the FSIA adopted an integrated doctrine of foreign state immunity, rescinding in its entirety and in all cases the practice of court deference to the State Department’s intercessions, or whether a distinct branch of absolute immunity applying uniquely to heads-of-state survived the Act. To this Court, the dearth of pre-FSIA authority distinctly addressing head-of-state immunity casts substantial doubt over the proposition that in enacting the FSIA Congress intended to enunciate a far-reaching substantive redirection of United States international relations policy in the form of a uniform rule of law to govern all assertions of foreign immunity, including head-of-state immunity. At the time of the FSIA’s adoption, no widely accepted international practice established a separately standing principle of head-of-state immunity. In fact, prior to 1976 the doctrine of sovereign immunity was generally understood to encompass solely state immunity. Consequently, any reference to a head-of-state immunity “doctrine” as a concept distinct from foreign state immunity is a construct that does not arise in the case law and commentary as a specifically identified and widely recognized legal principle until after 1976. Thus, for Congress to have purposefully codified a head-of-state immunity rule would have required application of the FSIA to unique circumstances that were then relatively unencountered and undefined, not only domestically but abroad. To that degree such a pronouncement by Congress would have constituted a significant unilateral departure from international practice that, if so considered and designed would hardly have gone unnoticed and unmentioned by other governments. Authorities recognize that the growth of international law is evolutionary. It expands by accretion as consensus develops among nations around widely recognized customs, practices and principles, and not by patchwork elevation of any one country’s ad hoc pronouncements. Thus, any dramatic deviation from accepted international norms legislated by any single state without reference to widely accepted customary rules would be inconsistent with this principle. Chief Justice Marshall articulated this notion, also in The Schooner Exchange: A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. With a legislative record devoid of any explicit contrary expression, a deliberate purpose to depart from generally prevalent international customs and practices as regards immunity for heads-of-state should not be ascribed to Congress. The substantial disarray and division in the courts’ practice following the enactment of the FSIA still prevails regarding the treatment accorded to head-of-state immunity and various other related issues emanating from the Act. In fact, the Second Circuit and other courts concur only in that “[t]he scope of this [head-of-state] immunity is in an amorphous and undeveloped state.” In this Court’s reading of relevant precedent, it thus would be an overstatement to say that Congress could have envisioned legislating to address a situation whose inherent problems, complexities and exact dimensions were not known or fully comprehended at the time. Since 1976, however, some conceptual fissures have separated the ancient notion that equated the head-of-state to the state itself. There is now growing recognition that the sovereign is solely the state and that the nation’s ruler is a distinct entity. In this regard, substantial case law has begun to develop, identifying issues singularly associated with head-of-state immunity and demanding treatment under a set of rules reflecting that uniqueness. But the courts are still grappling with the definition and scope of that doctrinal separation. Neither a clear consensus nor a controlling standard that can be considered to reflect customary international law has emerged from the courts’ consideration of those issues. 3. Post-FSIA Effects and Developments A substantial increase in litigation brought against foreign states was recorded after the FSIA’s enactment. This development may have been a by-product not only of cases engendered by the clarifying rules the Act promulgated, but of the continuing rise in foreign trade conducted by states and their public entities. A phenomenon of particular significance to the action at bar is noteworthy in this post-FSIA trend: the substantial incidence of claims asserted directly against heads-of-states, as opposed to the state itself, often relating to conduct alleged to be personal and unconnected with any governmental duties. Three circumstances may explain this development. First, some plaintiffs, aware that suits naming the state directly are explicitly barred by the FSIA, either for tactical effect or to test the substantive contours of the Act’s exceptions, have sought to assert theories of liability that extend to foreign officials not only as “agencies or instrumentalities” of the state, but in their personal capacities. Second, as international trade and opportunities to expand wealth in global markets has continued to expand, more heads-of-state themselves may be engaging in private foreign investment and commercial ventures funded by their personal and family fortunes. A third phenomenon, of more recent roots, is closer on point. Increasingly, the world’s nations have come to give recognition and legal expression to new realities about the actions of state officials. These concerns have taken front-stage roles in international relations. Many major crimes and sources of personal injuries, such as genocide, acts of terrorism and abuses of human rights, honor no bounds of decency, and respect no national borders. People and the nations they comprise are more conscious that, like the effects of subterranean faults, violations of international law and state denials of universally recognized fundamental liberties in one country can reverberate harmfully in others. As a by-product of this greater awareness, a deeper wedge has been driven in the old sovereign equation, in recognition that it is not the “state” as a collective abstraction, but rather live persons, with or without the badge of the state, who commit atrocities in violation of common norms, and that high-ranking government officials, even heads-of-state themselves, may be among the persons prone from time to time to indulge in lawlessness. Finally, to address these concerns and changing circumstances some adjustments in the practices governing relations among states became necessary. To these ends, a considerable body of new rules emerged, both domestically and internationally, in large measure during the years soon after the enactment of the FSIA. As a consequence, with greater incidence, foreign state officials are accused of wrongful conduct arising not just from private commercial ventures, but from alleged criminal activity and abuses of human rights in violation of customary international law. In fact, the broad body of substantive law and behavior constituting recognized violations of international norms, which correspondingly has given rise to claims such as the one at bar for enforcement of those rights, has expanded significantly in more recent years. Concomitant with the increase in the body of law defining rights, is another related major development. Efforts to define the concept of international crime and the reach of human rights, and to hold violators accountable, would amount to no more than emblematic gestures unless those reforms were accompanied by a corresponding dismantling of the long-standing doctrinal bastions that have impeded the exercise of domestic and international jurisdiction over state officials for violation of the new standards. And in fact, just such relaxation of the old barriers has occurred; material chips have been scored in the ramparts foreign government agents once routinely erected as absolute defenses against litigation challenging their private conduct as crimes against humanity or other egregious abuses of human rights contravening international norms. The world’s nations, through treaties, conventions and declarations, have established standards defining as violations of customary international law, practices such as genocide, crimes against humanity, torture, forced disappearance, extra-judicial killings and terrorism. To promote enforcement of these standards, the international community has mobilized in establishing mechanisms, modeled after the Nuremberg War Crimes Tribunal following World War II, such as the International Criminal Tribunals for the Former Yugoslavia and for Rwanda created by the United Nations. Most recently, they adopted the statute of the International Criminal Court. The United States itself has joined in some of these developments by ratifying the Convention Against Torture in 1994 and enacting the TVPA in 1991 that empowered victims to file suits against acts of official torture and extrajudicial killings occurring in foreign states. Judicially, in 1980, the Second Circuit infused vitality into the ATCA, which had lain dormant on the books from virtual desuetude since 1789. In Filarti-ga, the Court of Appeals construed the law as “opening the federal courts for adjudication of the rights already recognized by international law,” and held that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” The net results of these developments bear upon the issues before this Court. They have caused some breach in the theoretical walls that once absolutely impeded the exercise of national jurisdiction against heads-of-state and other foreign officials for private conduct that violates clear and unambiguous norms of established international law. As a consequence, it has become harder for foreign officials accused of egregious personal misdeeds contravening customary international standards to find escape holes in which to crawl in flight from the arm of international law and its associated implementing domestic statutes. Private parties in rising numbers, such as Plaintiffs here, thereby have been encouraged to institute claims against such foreign state officials asserting damages caused by their personal derelictions. Importantly, to some degree, progression in the international sphere either mirrors or has been driven by comparable evolution of principles on the domestic front. For, inroads have been recorded against the absolute immunity from suit that heads-of-state once enjoyed at home. Nonetheless, many of these developments are incipient and still relatively modest. Whatever the trend, and however heartening it may be to the victims of gross brutality and to the human spirit’s yearnings and strivings for justice, this progress by no means signifies, as confirmed by the intense arguments Plaintiffs and the Government advance before this Court, that a body of widely recognized principles exists, either in this country or internationally, clearly delimiting the bounds within which private claims against foreign heads-of-state and other high officials may be prosecuted in national courts. In this formative environment, agreement may exist with regal’d to one general proposition: that developments in the criminal context, whether concerning former or sitting government leaders, have advanced more definitively than the parameters defining permissible jurisdiction over sitting heads-of-states extending to personal conduct in civil matters. 4. FSIA Case Law The conceptual distance that still exists between human expectations and the law’s bestowals in relation to the international concepts here at issue is best illustrated by two conflicting camps into which construction and application of the FSIA have branched. One, which Plaintiffs advocate upon the Court, holds that the FSIA une-quivocably shifted from the State Department to the courts responsibility for determining all claims of foreign immunity, including those filed on behalf of heads-of-state. Plaintiffs contend that this theory is reflected in the approach the Ninth Circuit adopted in Chuidian. A second strand, pressed by the Government and articulated by the Eastern District of New York in Aristide, holds that the FSIA does not apply to claims of immunity asserted by heads-of-state. As to heads-of-state immunity, this view maintains, pre-FSIA common law practice remains valid, constraining the courts to accept as conclusive the State Department’s suggestions of immunity. For the reasons indicated below, this Court concludes, though not fully accepting some of Aris-tide’s implications nor rejecting all aspects of Chuidian, that the analysis in Aristide better accords with this Court’s reading of the FSIA’s text, purposes and legislative history. The Aristide outcome is also more consistent with other cases precisely on point, as well as with prevailing practices of customary international law as reflected in United States jurisprudence. a. Chuidian Plaintiffs contend, relying heavily on Chuidian and the line of cases following it, that the FSIA applies so as to authorize the courts to adjudicate all claims of immunity not only by foreign governments, but by individual government officials, including heads-of-state, and that courts need not defer to State Department suggestions of immunity because the Act stripped the Executive Branch entirely of its former role in that process. A full review of the facts in Chuidian is essential to an understanding of the actual scope of the Ninth Circuit’s holding and to a full assessment of Plaintiffs’ contention here. Chuidian was brought by a Philippine citizen who owned various business interests in California. As part of a settlement of litigation commenced during the rule of former President Ferdinand Marcos between Chuidian and a Philippine government export loan agency, the Philippine National Bank, also a state-owned entity, issued an irrevocable letter of credit to Chuidian on behalf of the export agency. Following the overthrow of Marcos, the new government appointed a Commission on Good Government charged with recovering the wealth Marcos had unlawfully accumulated and held abroad. Acting in accordance with this mandate, Raul Daza, a member of the Commission and a named defendant in the case, instructed the Bank not to honor Chuidian’s letter of credit, purportedly because the settlement it secured was a fraudulent transaction whose purpose was to induce Chuidian not to reveal information about Marcos’s personal interests in Chuidian’s business enterprises. When the Bank refused to make payment on the letter of credit, Chuidian sued, naming Daza among the defendants. Among his claims, Chui-dian asserted intentional interference in his contractual relations with the Bank. Though sued individually, Daza argued that he was entitled to sovereign immunity because he qualified as an “agency or instrumentality of a foreign state” as defined by FSIA § 1603(b). Chuidian countered that the Act was not meant to cover individuals sued for acts taken in their private capacities, or alternatively, that Daza and the conduct in question were otherwise encompassed by the FSIA’s exceptions to sovereign immunity. On this theory, because the Act provided the sole source of recognition of sovereign immunity, and Daza did not satisfy the definition of a “foreign state,” his claim to immunity could not be granted. The Government, in a “Statement of Interest” issued by the Department of State on Daza’s behalf, agreed with Chui-dian’s argument. It maintained that, in fact, as a private person, rather than a state-owned corporation or other entity, Daza was not covered by the Act, but that, as a representative of the state engaged in official business in the underlying transaction, he was nonetheless eligible to be granted immunity at the State Department’s behest under pre-FSIA common law doctrine. According to the Government’s view, the Act replaced the common law sovereign immunity rules only in the context of claims brought against a foreign state or its instrumentalities; otherwise, as to individual government officials whose acts are not specifically covered by the Act, the common law sovereign immunity doctrine, as defined in the Restatement (Second) of Foreign Relations Law § 65 and contemplating the binding effect of the State Department’s declarations of sovereign immunity, remained valid. The Ninth Circuit acknowledged that the Act was ambiguous in regards to its application to individuals. In the court’s reading, the legislative history suggested that Congress was concerned primarily with governmental organizations acting on behalf of foreign states and did not explicitly contemplate individuals sued in that capacity. In fact, one district court in the Ninth Circuit already had held precisely as much. Nonetheless, the Circuit Court rejected the positions advanced by Chuidian and the Government. It noted that while the Act did not expressly include individuals within the definition of “foreign state”, it also did not explicitly exclude them. Absent clear indication that the Act precluded immunity claims by natural persons, the court concluded that, as a codification of prevailing common law principles that extended immunity to certain individual foreign officials, the FSIA did cover Daza. In rejecting the Government’s contention that the FSIA effectively bifurcated the sovereign immunity process — the same argument the Government urges before this Court — the Chuidian court observed that “the principal distinction between pre-1976 common law practice and post-1976 statutory practice is the role of the State Department” and that the Government’s interpretation was inconsistent with Congress’ manifest intent to remove the State Department’s discretionary role in the process. Finding that the Act was meant to be comprehensive, the court concluded that the statute could not “reasonably be interpreted to leave intact the pre-1976 common law with respect to foreign officials”, a proposition that would require courts to revert to the practice of giving conclusive weight to the State Department’s determinations of whether or not a foreign government official’s activities fall within the traditional exceptions to sovereign immunity. Addressing Chuidian’s alternative theory — 'that in committing the alleged wrongs at issue Daza acted out of personal malice rather than in his official capacity — the Ninth Circuit made an observation, referred to by the parties here, that bears on the arguments in this case. The Court declared that “plainly Daza would not be entitled to sovereign immunity for acts not committed in his official capacity.” Nonetheless, the court concluded that, regardless of his motive, when Daza stopped the Bank’s letter of credit payment to Chuidian, he was still purporting to act as a government official and exercising authority deriving entirely from his office as a member of the Presidential Commission. The Chuidian court’s conclusion that the FSIA covers natural persons, but that sovereign immunity ceases when an individual state officer acts beyond the scope of his governmental authority, has been favorably cited or followed in other cases. The Ninth Circuit itself, in two related actions arising out of alleged acts of torture, executions and other human rights abuses allegedly committed by former Philippine President Ferdinand Marcos and his government ministers, ruled that the FSIA could not serve to provide sovereign immunity for such conduct when it is taken beyond the authority of any public mandate and thus could not have constituted acts of an agent or instrumentality of a foreign state within the meaning of the FSIA. In a similar vein, in Cabiri v. Assasie-Gyimah, a court in this District held that alleged acts of torture committed by a foreign state’s Deputy Chief of National Security fell outside his governmental authority, and the protections of the FSIA therefore did not extend to immunize the individual’s private conduct. b. Añstide Against the foregoing string of authority, the Government here continues to press the sovereign immunity theory Chui-dian effectively rejected. The Government dismisses Chuidian and its line of precedents as inapposite and distinguishable in two critical respects: none of these cases involved a sitting head-of-state or foreign minister, and in none of them did the State Department file a suggestion of immunity. Thus, the Government argues that, contrary to Chuidian’s broad language and reasoning, courts uniformly have dismissed actions against heads-of-state where the Executive Branch did interpose a suggestion of immunity. The Government relies upon Aristide as its leading authority. There, plaintiff was the wife of Dr. Roger Lafontant, a political opponent who allegedly attempted a coup d’etat to prevent Haiti’s then recently elected President Jean-Bertrand Aristide from assuming office. Aristide, according to plaintiff, ordered a member of Haiti’s armed forces to execute Dr. Lafon-tant while in prison, an act plaintiff contended was a crime and a tort not officially sanctioned by or in furtherance of Aris-tide’s official duties. Plaintiff brought suit during Aristide’s exile in the United States. In that action, the Government, which had recognized Aristide as Haiti’s lawfully elected head-of-state despite his overthrow, filed a suggestion of immunity asserting that “‘permitting this action to proceed against President Aristide would be incompatible with the United States’ foreign policy interests.’ ” The court applied common law immunity principles to hold that, absent waiver by statute or by the relevant foreign government, Aristide, as Haiti’s head-of-state recognized by the United States, was absolutely immune from the exercise of jurisdiction by United States courts. After examining the FSIA’s legislative history, Judge Weinstein concluded that the statute was inapplicable to a recognized sitting head-of-state because the Act had not “modified the long standing rule of international and common law” relating to head-of-state immunity. Instead, the court read the intent of the Act more narrowly to contemplate the specified exemptions from sovereign immunity to apply to state-owned entities engaged in commercial activities. The Court noted that “the FSIA took these cases out of the political arena of the State Department, while leaving traditional head-of-state and diplomatic immunities untouched.” In sharp contrast with the broad language and implications of Chuidian, Judge Weinstein declared that “the State Department needs to retain decisive control of grants of head-of-state immunity by preserving the pre-FSIA ‘absolute’ theory of immunity” an4 concluded that “the pre-1976 suggestion of immunity procedure survives the FSIA with respect to heads-of-state.” Accordingly, because Aris-tide enjoyed absolute head-of-state immunity, it was not necessary for the court to consider whether an act of his allegedly ordering a killing would be regarded as official or private. The central principle of Aristide — that the enactment of the FSIA did not alter the role or binding effect of the State Department’s suggestions of immunity for foreign heads-of-state- — in fact is consistently reflected in other post-FSIA cases where the Government filed suggestions of immunity. Especially on point in this regard is Domingo v. Republic of the Philippines. There, plaintiffs alleged that the defendants, who included President Ferdinand Marcos and his wife Imelda, had planned, executed and covered up, during Marcos’s rule, the murder of two senior Philippine political leaders who had opposed the Marcos regime. Plaintiffs commenced their suit in 1981, while Marcos was still in power. In 1982, the court, in response to a suggestion of immunity filed by the State Department, ruled that the Marcoses were entitled to dismissal of the claims against them. At that time the court had found that the legislative history of the FSIA demonstrated “no evidence ... that Congress intended to eliminate the Suggestion of Immunity procedure as a means of securing the dismissal of an action against a foreign head of state” . On this basis, the court concluded that it was bound to accede to the State Department’s intercession on behalf of the Marcoses. In 1987, however, after the Marcoses fell from grace and left office for exile in the United States, plaintiffs moved to reinstate the earlier dismissed claims against them in the same action, which had proceeded against the remaining defendants. On this occasion, the court granted the motion, noting that neither the United States nor the government of the Philippines had interceded on the Marcoses’ behalf to assert immunity and that whatever significance the State Department’s suggestion possessed when it was filed in 1982 had expired by reason of the changed circumstances. Also instructive is First Am. Corp. v. Al-Nahyan. Plaintiffs in that case asserted claims naming various government officials and entities of the United Arab Emirates (“U.A.E.”), including H.H. Sheikh Zayed (“Zayed”), the U.AE.’s sitting head-of-state. The complaint alleged various fraudulent schemes and investments by defendants in connection with attempts to acquire certain banking interests in the United States. The Government filed a suggestion of immunity on behalf of Zayed. The court, rejecting arguments that the FSIA governed Zayed’s assertion of immunity, ruled that claims against Zayed were barred because he was entitled to immunity from the court’s jurisdiction under the head-of-state doctrine. On this point, the court declared: the enactment of the FSIA was not intended to affect the power of the State Department ... to assert immunity for heads of state or for diplomatic and consular personnel .... The United States has filed a Suggestion of Immunity on behalf of H.H. Sheikh Zayed, and the courts of the United States are bound to accept such head of state determinations as conclusive. As regards the issue of the FSIA’s application to individuals, the court observed that the Act’s focus “ ‘is towards corporate and government entities — legal yet nonna-tural “persons.” Nowhere does the FSIA discuss the liability or role of natural persons, whether governmental officials or private citizens.’ ” Significantly, the court held that certain defendants who were members of the ruling family of a political subdivision of the UAE, which thus was not a recognized independent state, were not entitled to head-of-state immunity because none was a sitting head-of-state and the State Department had not suggested immunity on their behalf. Similar reasoning and results are recorded in other cases involving State Department suggestions of immunity invoking the emerging head-of-state doctrine. Equally germane is the courts’ treatment of sovereign immunity in cases involving former or sitting heads-of-state where the State Department has decided not to intercede; where a waiver of immunity has been filed by the current foreign government; or where the United States does not recognize the legitimacy of the particular state or ruler. In Karadzic, for example, the district court declined to exercise subject matter jurisdiction over claims alleging human rights violations brought against the self-declared head of the Bosnian-Serb entity, neither the state or ruler of which the United States had recognized. In considering Karadzic’s claim of head-of-state immunity, the district court stated that “[w]ere the Executive Branch to declare defendant a head-of-state, this Court would be stripped of jurisdiction.” On appeal, the Second Circuit, reversing the finding on subject matter jurisdiction, implicitly endorsed the district court’s stated assumption and the reasoning in Aris-tide by positing that recognition of Karad-zic as head-of-state by the Executive Branch in the future may confer immunity over the actions at issue. For the purposes of the case at bar, what is especially relevant and instructive in th