Full opinion text
DECISION AND ORDER MARRERO, District Judge. TABLE OF CONTENTS Page I. BACKGROUND.405 II. DISCUSSION.406 A. LIMITATIONS OF CHOICE OF LAW.406 B. EMERGENCE OF FEDERAL COMMON LAW POST-FILARTIGA.418 C. CHOICE OF LAW ANALYSIS AND APPLICATION OF THE PERTINENT RULES OF DECISION.'.420 1. Torture and Extrajudicial Killing.420 a. Tapfuma Chiminya Tachiona.420 b. David Yendall Stevens.•.421 c. Metthew Pfebve.421 2. Denial of Political Rights.,.423 a. The Restatement of Foreign Relations.426 b. The Civil and Political Rights Covenant.427 c. Recognition by Court and Other Adjudicatory Bodies.430 d. Application to the Case At Bar .432 e. Zimbabwe Law.434 3. Cruel, Inhuman or Degrading Treatment.435 a. International Law.435 b. Zimbabwe Law.438 4. Racial Discrimination and Unlawful Seizure of Property.439 a. Racial Discrimination.439 b. Seizure of Property.440 III. CONCLUSION.441 A CLAIMS ONE AND TWO.441 1. Extrajudicial Killing.441 2. Torture.441 B. CLAIMS THREE AND FOUR.441 1. Loss of Enjoyment of Political Rights .441 2. Loss of Property.441 C. CLAIM FIVE .441 D. CLAIMS SIX AND SEVEN.442 1. Systematic Racial Discrimination .442 2. Loss Home, Destruction of Business and Seizure of Property.442 IV. ORDER . 442 I. BACKGROUND Plaintiffs in this matter, all citizens of Zimbabwe, brought suit alleging violations of the Alien Tort Claims Act (the “ATCA”), the Torture Victim Protection Act (the “TVPA”), fundamental norms of international human rights law, and Zimbabwe law. In a Decision and Order dated October 30, 2001, the Court dismissed on jurisdictional grounds Plaintiffs’ claims naming as defendants Zimbabwe President Robert Mugabe (“Mugabe”) and other Zimbabwe government officials entitled to invoke sovereign or diplomatic immunity. But the Court found a sufficient basis to exercise jurisdiction over the claims asserted against the Zimbabwe African National Union-Patriotic Front “ZANU-PF,” the country’s ruling party, through process personally served on Mugabe, who is also ZANU-PF’s titular head. ZANU-PF failed to answer the complaint or otherwise appear in the case and a default judgment was entered against it. The Court then referred the matter to Magistrate Judge James C. Francis, IV for an inquest on damages. ZANU-PF did not appear in that proceeding as well. Consequently, the Magistrate Judge issued a Report and Recommendation on July 1, 2002 (the “Report”) recommending awards of damages on Plaintiffs’ claims under both the ATCA and the TVPA. The Court, in a Decision and Order dated August 7, 2002, adopted the Report’s factual findings and determination of damages relating to the torture and extrajudicial killing claims under the TVPA, but reserved judgment as to the award recommended under the ATCA. With regard to the ATCA claims, the Court determined that under its reading of applicable Second Circuit doctrine, as articulated in Filartiga v. Pena-Irala, it was required to perform a choice of law analysis to determine the appropriate substantive law governing the adjudication of ATCA disputes alleging human rights abuses. The Second Circuit recently reiterated this approach. In dictum in Wiwa v. Royal Dutch Petroleum Co., the court construed Filartiga I to hold that the “ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive law in such an action.” Because the choice of law question had not been addressed in prior proceedings on this matter, the Court directed the parties to brief the issue. Plaintiffs submitted a timely response. ZANU-PF did not respond. Consequently, the Court regards Plaintiffs’ factual assertions, and the materials describing the content and meaning of Zimbabwe law as it pertains to the proceeding now before the Court, as unrefuted and accords them appropriate weight. Noting that each of the seven ATCA claims they assert describes conduct that violates substantive rights recognized by the Zimbabwe Constitution and applicable municipal laws, Plaintiffs urge the Court to approve the corresponding award of damages recommended by the Report. For the reasons described below, the Court adopts the recommendations of the Report with one modification. II. DISCUSSION A. LIMITATIONS OF CHOICE OF LAW Plaintiffs contend that the Court’s ATCA choice of law inquiry should focus on the existence of substantive rights violated by particular unlawful conduct and not on whether the law of the state where the alleged deprivation occurred recognizes specific causes of action defining those rights and prescribes particular remedies for their violation. Before undertaking the choice of law analysis Filartiga I instructs, the Court is obliged, as a context for its ruling, to express some conceptual challenges and practical constraints the task inherently presents. At the outset, a central question raised by the endeavor is the purpose the choice of law findings are to serve. Does the analysis compel the application of one forum’s pertinent law in its entirety? Or is it to be employed, as Plaintiffs suggest, for comparative ends, to identify various sources of relevant substantive rights and principles from which the Court may draw in fashioning the ATCA remedy most appropriate under the circumstances of the case? Ordinarily, a choice of law assessment weighs the competing interests of the different jurisdictions that may have significant contacts and relationships with a given legal dispute and substantial stakes in the outcome. The task presupposes that in considering the various claims for application of one forum’s deci-sional rules as opposed to another’s, the substantive local law applied would be that of the jurisdiction which, in the final analysis, possesses the'most significant relationships with the parties and the events and thus the most extensive interests in the outcome of the litigation. Consequently, the governing rules the inquiry would compel would encompass the entire body of local law that normally would be brought to bear domestically to fully resolve the merits of the controversy were it litigated in that jurisdiction. Under strict obedience to these choice of law doctrines, courts may not disregard applicable municipal law that the analysis points to as the substantive deci-sional rule, and instead pick and choose from among other doctrinal sources to tailor a remedy specific to the occasion. As the Supreme Court has observed; “The purpose of a conflict-of-laws doctrine is to assure that a case will be treated [in] the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum.” The adoption of these principles as the product of a choice of law evaluation of an ATCA claim poses a significant quandary. In some cases the relevant municipal law of the jurisdiction where the events occurred and where the parties reside, and thus whose application may be demanded under traditional choice of law precepts, may be inadequate or may conflict with federal principles embodied in the ATCA, or with international norms. In consequence, circumstances may arise, as in the instant case, in which rigid adherence to that local law may defeat the purposes of the ATCA. The rub here arises because a strict reading of Filartiga I may suggest the possibility of such an outcome. In pointing to the distinction between the ATCA jurisdictional threshold, which requires consideration of international law, and the question of the substantive law to be applied to determine liability, the Second Circuit indicated that the choice of law inquiry is “a much broader one, primarily concerned with fairness.” The Circuit Court then intimated that in performing the choice of law assessment on remand, the district court could very well decide that considerations of fairness would require application of municipal law of the foreign state where the events occurred, in which event “our courts will not have occasion to consider what law would govern a suit under the [ATCA] where the challenged conduct is actionable under the law of the forum and the law of nations, but not the law of the jurisdiction in which the tort occurred.” This Court, in performing the requisite choice of law inquiry in the instant case, grappled with the meaning and implications of the Füartiga I court’s mandate. Under traditional choice of law inputs relevant to the matter at hand, the United States has a significant interest in providing a forum for the adjudication of claims under the ATCA alleging certain violations of international human rights law, thereby advancing the realization of the values embodied in universally recognized norms. However, given the jurisdictional facts present here, Zimbabwe would have the predominant interests in the adjudication of this case pursuant to Zimbabwe law. All of the Plaintiffs are citizens of Zimbabwe. ZANU-PF is the country’s ruling political party, headed by Mugabe. All of the events Plaintiffs describe as constituting the actionable conduct and corresponding injuries occurred in Zimbabwe, arising out of political conflicts and social conditions prevailing there. Thus, the pertinent relationships between this action and the parties and underlying events are predominantly connected with Zimbabwe. Zimbabwe therefore has a strong interest in the application of its local law to the resolution of a controversy so fundamentally rooted in that country. But what decisional rules should apply if, as discussed below, the governing law of Zimbabwe, while in general terms recognizing some of the rights Plaintiffs invoke here under the ATCA, does not define specific causes of action to vindicate the particular claims asserted, or does not permit recovery of the kinds of damages Plaintiffs seek, or may otherwise bar liability, so that the effect of applying the entire municipal law of Zimbabwe to address the violations of international law here alleged would be to defeat some or all of Plaintiffs’ claims and thus the remedy the ATCA contemplated? Similar concerns have been articulated by other courts that have encountered and addressed these complexities in determining the source of substantive law to apply in adjudicating ATCA claims. The doctrinal underpinnings of the dilemma is best captured in the divergent approaches expressed by the concurring opinions of the Circuit Court in Tel-Oren v. Libyan Arab Republic, as to whether the ATCA, beyond conferring federal court jurisdiction, creates a cause of action, and as to the sources of any substantive decisional rules governing suits invoking the statute. As a threshold matter, as Judge Bork observed, international law ordinarily does not create causes of action conferring upon individuals a self-executing right to sue to vindicate particular violations of universally recognized norms. Rather, many international human rights instruments merely enunciate in expansive generalities particular principles, aspirations and ideals of universal and enduring significance. These sources serve as fonts of broadly accepted behavioral norms that nations can draw upon in carrying out their obligations to their peoples. International law ordinarily leaves it to each sovereign state to devise whatever specific remedies may be necessary to give effect to universally recognized standards. As noted by a leading commentator: “International human rights instruments do not legislate human rights; they ‘recognize’ them and build upon that recognition [ ],” which assumes the human rights’ “preexistence in some other moral or legal order.” To these ends, various international declarations, covenants and resolutions cata-logue rights all persons should enjoy; affirm the obligations of nations to ensure those rights by means of implementing legislation;. exhort governments to protect and promote widely recognized rights; and pronounce the global community’s condemnations and renunciations of wrongful practices. In the words of Judge Bork: “Some define rights at so high a level of generality or in terms so dependent for their meaning on particular social, economic and political circumstances that they cannot be construed and applied by courts acting in a traditional adjudicatory manner.” These norms and practices acquire the status of customary “law of nations” only insofar as they ripen over time into settled rules widely recognized and enforced by international agreements, by judicial decisions, by the consistent usage and practice of states and by the “general assent of civilized nations.” But, because such customary principles and practices of sovereign states do not derive and acquire the status of law from the authoritative pronouncements of any particular deliberative body, they generally do not create specific “causes of action” or a self-executing right to sue entitling victims to institute litigation to vindicate violations of international norms. As one court expressed this point: “While it is demonstrably possible for nations to reach some consensus on a binding set of principles, it is both unnecessary and implausible to suppose that, with their multiplicity of legal systems, these diverse nations should also be expected or required to reach consensus on the types of actions that should be made available in their respective courts to implement those principles.” Nonetheless, under Filartiga I, certain wrongful conduct violates the law of nations, and gives rise to a right to sue cognizable by exercise of federal jurisdiction under the ATCA, when it offends norms that have become well-established and universally recognized. The Filartiga I court, however, did not explicitly address whether the federal right of action it inferred existed under the ATCA in fact derives from and is to be substantively adjudicated by principles drawn from international law or from federal or municipal law. Manifesting some ambiguity on this point, the court construed the ATCA “not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.” Rather, as stated above, the Second Circuit directed that once federal jurisdiction is properly exercised by means of the threshold determination that the claimant has asserted a recognized violation of international law, the rules of decision applicable to adjudication of the case must be decided by a choice of law inquiry employing the considerations set forth in Laurit-zen. In his Telr-Oren concurrence, Judge Edwards endorsed the view of the Second Circuit that ATCA itself creates a right to sue for alleged violations of the law of nations. He voiced a reservation, however, that the Filartiga I formulation “is not flawless” and recognized that the task the ruling entrusts to the district court at the threshold jurisdictional finding is daunting. On this point, he noted that the Filartiga I approach “places an awesome duty on federal district courts to derive from an amorphous entity — ie., the ‘law of nations’ — standards of liability applicable in concrete situations.” The difficulty inherent in the Filartiga I charge is compounded by the second phase of the inquiry the ruling mandates, that of deciding the substantive standards to apply in evaluating ATCA claims involving human rights abuses. The challenge has engendered significant conceptual division and divergent practices among the courts that have addressed the question. In Telr-Oren, for example, Judge Edwards suggested, as an alternative formulation to the Filartiga I approach, that litigation may be brought under ATCA asserting substantive rights of action defined as common law torts, with the rules of decision supplied by domestic law of the United States, as long as a violation of international law is also alleged. The alternative also has been the subject of considerable differences among the courts and has generated numerous permutations and adaptations variously applying, as the basis of substantive law in ATCA adjudications, rules of decision drawn from: federal common law; the forum state; the foreign jurisdiction most affected; international law; or a combination of these sources. In Adra v. Clift, for example, the court applied the alternative formulation where the tort, that of abducting a child from a parent entitled to custody, was defined by municipal law, and the violation of the law of nations consisted of the misuse of a passport as the means to carry out the wrongful conduct. A variation of this approach was followed in Trajano v. Marcos, where the Ninth Circuit endorsed the district court’s application of the Telr-Oren alternative as modified to rely upon the domestic law of the foreign jurisdiction, rather than that of the United States, to provide the cause of action. But in Doe v. Unocal Corp. the Ninth Circuit determined the liability of a private third-party in an ACTA claim by reference to international law, rather than the municipal law of the foreign state, or federal or forum state law, where the alleged violations implicate only peremptory norms (jus cogens ). In Hilao v. Marcos, another panel of the same court held that ATCA creates a cause of action for violations of universal human rights standards and applied federal law to decide a survival of claim issue without any choice of law analysis or review of municipal law. In Xuncax, however, the court rejected the domestic law right to sue alternative in favor of a different approach. The court applied violations of international law as the basis for both the exercise of ATCA jurisdiction and as the source of the pertinent substantive cause of action “without recourse to other law”. Noting that municipal law may be inadequate to address in a meaningful way alleged violations of international human rights, the court suggested that under the approach it proposed “courts will be freer to incorporate the full range of diverse elements that should be drawn upon to resolve international legal issues than they would if bound to straightforward recurrence to extant domestic law.” In Wiwa, the Second Circuit acknowledged these fundamental qualms and alternative formulations, but declined to reach the issue because its decision to sustain ATCA jurisdiction in the case before it was based on other grounds. However, several considerations counsel against a narrow reading and rigid application of Füartiga I as compelling unyielding allegiance to municipal law derived from choice of law analysis to supply the exclusive substantive cause of action and rules of decision governing adjudication of the merits of international human rights claims invoking the ATCA. First is the treatment of the issue by the district court on remand. Grappling with the difficulties its mandate from the Second Circuit presented, Judge Nickerson addressed the open questions head on. While conducting the choice of law analysis enunciated by the Circuit Court’s ruling, Judge Nickerson considered whether the “tort” to which that statute refers means “a wrong ‘in violation of the law of nations’ or merely a wrong actionable under the law of the appropriate sovereign state?” Judge Nickerson responded to this question by determining that the court’s inquiry was not circumscribed by, nor did it necessarily end with, the municipal law of the foreign state where the alleged international tort occurred. The interests of the foreign state were relevant in this context, but only “to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States.” Rather, the district court determined that definition of the relevant wrongful conduct should be guided by the norms and practices universally recognized by the international community, and not by the laws of a particular state. “[W]here the nations of the world have adopted a norm in terms so formal and unambiguous as to make it international ‘law,’ the interests of the global community transcend those of any one state.” Consistent with these principles, Judge Nickerson found that: [T]here is no basis for adopting a narrow interpretation of [the ATCA] inviting frustration of the purposes of international law by individual states that enact immunities for government personnel or other such exemptions or limitations. The court concludes that it should determine the substantive principles to be applied by looking to international law, which, as the Court of Appeals stated, “became a part of the common law of the United, States upon the adoption of the Constitution.” According to the broader view of the scope of the ATCA that Judge Nickerson propounded, Congress entrusted to the federal courts the task of determining the substantive rights to be applied to ATCA claims by reference to international standards, as well as the “power to choose and develop federal remedies to effectuate the purposes of the international law incorporated into United States common law.” On this basis, the district court determined that the laws defining substantive rights recognized by the foreign state in the case before it (Paraguay) prohibited torture. The court applied that body of law to determine liability, but also found no provision in it authorizing punitive damages. Nonetheless, Judge Nickerson awarded such damages in order to effectuate the federal policy embodied in the ATCA and the clear objectives reflected in the international prohibition against state-promoted torture. Second, the broader approach adopted by the district court in Filartiga II has gained recognition and acceptance by other federal courts that have considered ATCA claims in the face of inadequate or conflicting municipal law of the foreign state. Under these circumstances, rather than relying wholesale on foreign municipal law, the courts uniformly have undertaken to fashion a remedy by reference to the full range of available decisional guides and sources, in particular principles derived from federal common law. These precedents speak to the shortcomings of an approach that would compel an undeviating or even primary reliance on municipal law to adjudicate claims under the ATCA. In Xuncax, for example, given the ATCA’s silence concerning a claimant’s standing to bring suit to vindicate harms to another victim, the district court sought a suitable rule of decision to adjudicate claims for summary execution and disappearance based on injuries to third persons. Relying on the doctrine that where federal legislation creates a cause of action without specifying vital details the courts look to analogous state law insofar as it would not defeat the purposes of the federal statute, the Xuncax court determined that the TVPA provided the most analogous remedy. The court also invoked the TVPA to apply Guatemala law, rather than a forum state rule of decision which would have barred recovery, to decide the right of a sibling to sue under the ATCA. Similarly, in Forti I the district court faced a choice of whether to apply a federal or state limitations period. It found a germane analogy in the federal Civil Rights Act, and did not feel compelled to look beyond the relevant body of federal law to formulate an appropriate decisional rule. Third, several conceptual, policy and practical constraints caution against strict adherence to municipal rules of the foreign state in defining the scope of substantive rights and causes of action to be applied in adjudicating ATCA claims, and counsel instead a measure of flexibility, as reflected by the cases cited above, to enable the courts to fashion remedies compatible with the principles of federal common law and the content of universally recognized norms of international law. Just as the sources from which universal norms of international conduct derive are often articulated as generalities or conclu-sory precepts, equally so many principles of the organic law of sovereign states are typically expressed in terms that are no less sweeping nor any more self-executing. Pronouncements recognizing fundamental rights governing the state’s conduct in relation to its people are not always accompanied by corresponding promulgations of specific definitions and causes of action authorizing enforcement through private suits. In consequence, in their assessments of ATCA claims, courts looking to foreign municipal law are likely to encounter common situations, as experienced in the cases discussed above and by this Court in reviewing principles of Zimbabwe law in the matter at hand, that raise significant choice of law impediments to the application of the ATCA and hinder the furthering of the goals of international standards. The municipal law, for example, may manifest general domestic recognition of a fundamental norm without specifically elevating it further into a defined private right of action. Local rules may also provide a remedy that may not suffice to adequately highlight and respond to the gravity of the conduct and the import of the case. Or else the foreign law may contain no relevant decisional rule at all. Or it may provide a standard that, if applied to adjudicate specific ATCA claims, would dispose of the case in a manner that would defeat a remedy consistent with fostering the purposes of federal and international law. As succinctly phrased by the Xuncax court: “Simply put, municipal law is ill-tailored for cases grounded on violations of the law of nations.” This situation may prevail for several reasons. Even today — despite evidence of more widespread recognition of universal standards through the proliferation of international instruments among the many sovereign nations in the world, with their multiplicity of histories, cultures and customs, and diverse stages of development— there are many jurisdictions in which the rule of law as we know it remains a relatively recent and still incipient adaptation. Thus, in these states the enunciation of substantive definitions, and elaboration of causes of action and corresponding deci-sional rules necessary to govern all aspects of the full range of mature, enforceable rights common in our jurisprudence, remain at various rudimentary stages, if they exist at all. Another limitation inherent in placing undue reliance on municipal law of the foreign state in choice of law analysis is reflected in actions, such as the case at bar, that charge egregious misconduct by the sitting government itself through measures taken by the highest ranking officers of the regime. These are the very officials whose public duties encompass enacting, enforcing and construing domestic laws, and deciding the state’s compliance with international norms. It is unlikely to escape the notice of government leaders who defile the powers of their offices by resorting to the barbarism of state-sponsored torture and murder, and to the brutalities characteristic of inhuman treatment of their nation’s own people, to equally dishonor the municipal justice system and its laws in order to immunize themselves from accountability and liability for their wrongs. Doctrines such as absolute or qualified immunity for the state and government personnel, statutes of limitations, and definitions of state action and other exemptions, may be easily perverted by self-serving enactments specifically designed to shield the misconduct of the selfsame offenders whose deeds define the deviation from universal norms, thereby subverting international law. Were the federal courts obliged to give unremitting recognition and deference to the substantive laws and defenses compelled by municipal law under a choice of law analysis, in some instances such application of foreign law could frustrate the right of action the ACTA was designed to confer upon the victims of international lawlessness. Moreover, as described above, well-established, universal, and obligatory norms defining rules of international conduct, evolve by custom and usages of nations over time. They are further elaborated by the works of reputable jurists and scholars and settled through longstanding practice and application in judicial decisions recognizing and enforcing those rules. In consequence, because customary international norms are not always fixed in codifications or treaties, not every nation will necessarily reflect clearly in its domestic jurisprudence principles that manifest its unequivocal assent and adherence to universal standards that may override municipal rules. By the same token, under customary practice in many global bodies, the declarations, resolutions and covenants that embody international practices are adopted by consensus. This procedure, while giving some legitimacy to the content of the instrument as evidence of broad recognition, at times conceals the degree of unstated reservations or dissent among regimes that do not voice their objections and instead silently join the consensus in response to the pushes and pulls of internal and external social and political pressures. Accordingly, while it may be expedient for a state to refrain from objecting to the international community’s promulgation of particular standards to govern relations among nations and their subjects, its tacit acceptance does not always translate into enactment of corresponding municipal law giving meaning and force to the generalities articulated in the instruments with which the state publicly associates itself. Thus, a gap sometimes exists between the public concurrence the state professes abroad to norms of international conduct in their relations with the community of nations and the measures it actually adopts at home to enable its people to realize the benefits of those universal rules. It is not uncommon in international practice for states to pay lip-service homage to the promulgation of particular international instruments, and even to ratify binding covenants, but then delay or fail altogether to adopt the municipal implementing legislation necessary to give the enunciated international rights meaningful domestic legitimacy and create an effective national means to vindicate them. For much of the same reasons, adjudication of claims that assert violations of customary international law and seek to vindicate universally recognized rights often engenders conceptual anomalies between the gravity of the offenses, the high promise conveyed in lofty terms by universally recognized rights, and the limited scope of available municipal remedies. Human rights offenses universally held to contravene the law of nations occupy the low ground reserved by civilized people to rank the most heinous of human behavior. Typically these wrongs are correspondingly branded in language employing the most profound opprobrium, fittingly portraying the depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce. These expressions mark the high stakes enshrined by universally outlawed practices such as genocide; slavery; torture; summary execution; forced disappearance; war crimes and crimes against humanity. Between the horrid deeds these recognized atrocities proclaim, and the ringing words and promises with which they are universally condemned and renounced in solemn international instruments, lies a reality: that extant municipal law may not be available or may lag behind the need in providing adequate or readily accessible remedies to redress universally recognized wrongs, and that not infrequently, in the absence of any particular right of action specifically defined and promulgated to fit the real wrongs at hand, such means of relief as may exist are achieved only by Procrustean analogies that do not always capture or do justice to the actual grievousness associated with the offenses. Thus, for example, under municipal law of some jurisdictions, the magnitude of genocide and murder by torture and extrajudicial killing may have to be adjudged and remedied in accordance with ordinary civil tort standards prescribed in wrongful death statutes. Wholesale degradations and deprivations of all traces of human dignity perpetrated by cruel, inhuman or degrading treatment may be civilly prosecuted under local principles defining assault and battery or infliction of emotional distress. Forced disappearance and prolonged arbitrary detention may be classified as false imprisonment. To be sure, some aspects of international offenses may share elements with the ordinary municipal law torts. But, in practice, the acute form of misconduct entailed in international violations in many cases amounts to more than mere differences in degree, and assumes differences in kind so fundamental as to compel distinct treatment under universally recognized rules. The “enemy of all humankind”, in legal if not in genetic terms, often ranks as a different species from the ordinary tortfeasor of the typical case. Equally so is the class of universal rules that outcast the international outlaw, and thus declare him unworthy of all sovereign protections, distinguished from the global community’s exhortations of aspirational norms or even from customary international law. The difficulties, as evidenced by the courts that have addressed the issues, arise not merely as a question of semantics that demean the international standards. Rather, the greater concern lies in potential results that could frustrate efforts to fashion relief commensurate with the real repugnance of international wrongs and their profound effects, in other words, remedies that do not vindicate and recompense the victims of state-sponsored genocide and murder as if they had suffered nothing more than common law defamation and battery. Tel-Oren, for example, involved what Judge Edwards characterized as a “barbaric rampage” in which terrorists took 121 civilians hostage and “tortured them, shot them, wounded them and murdered them,” killing 22 adults and 12 children and seriously wounding 73 adults and 14 children, before police managed to stop the “massacre.” Although the dismissal of the case was sustained on substantive grounds, the district court had ruled alternatively that the action was also barred by the local one-year statute of limitations applicable to certain torts, such as assault and battery. For the same reasons, other courts, in order to reflect the true magnitude of the universally recognized wrongs at issue and confer relief proportionate to the harms engendered, have felt compelled to pick and choose from among available remedial options one that advances the purposes of the ATCA and international law, in doing so sometimes ignoring constraints of municipal law to fashion relief even when the foreign law did not specifically recognize a remedy. The underlying decisional rules at issue in these cases have involved, for example, survival of a cause of action after defendant’s death; the right of a sibling of the victim to bring an action under the ATCA; the applicable statute of limitations; and punitive damages. A final drawback to a choice of law approach mandating strict adherence to municipal law in redressing international law violations in ATCA cases is the practical and jurisprudential complexities that inhere in discerning, construing and enforcing substantive rules of decision formulated by foreign courts, legislatives or administrative bodies. The intricacies and challenges are compounded in ATCA adjudications by the integral links and interplay that exist between the application municipal and international law for both jurisdictional and decisional purposes. Though the Federal Rules of Civil procedures provide guidance for federal courts in applying foreign law, this authority does not mitigate the conceptual and pragmatic obstacles always associated with in the task. B. EMERGENCE OF FEDERAL COMMON LAW POST-FILARTIGA In synthesis, the foregoing case law reflects the emergence of a set of decisional rules federal courts have crafted to give scope and content to the cause of action the ATCA creates as it relates to international human rights law. Under these principles, as regards to misconduct that violates universally recognized norms of international law, the cases suggest several standards to guide ATCA choice of law determinations: (1) the local law of the state where the wrongs and injuries occurred and the parties reside may be relevant and may apply to resolve a particular issue insofar as it is substantively consistent with federal common law principles and international law and provides a remedy compatible with the purposes of the ATCA 'and pertinent international norms; (2) in the event the local law of the foreign state of the parties’ residence and underlying events conflicts with federal or international law, or does not provide an appropriate remedy, or is otherwise inadequate to redress the international law violations in question, a remedy may be fashioned from analogous principles derived from federal law and the forum state, or from international law embodied in federal common law; (3) should the application of law from federal and forum state principles as to some aspect of the claim defeat recovery, an analogous rule drawn from the municipal law of the foreign jurisdiction may be applied to the extent it supplies a basis for a decisional rule that may permit relief; (4) if some part of the claim cannot be sustained as a violation of international law, a remedy might be found by application of the foreign state’s municipal law under the federal court’s pendent jurisdiction if so invoked. In essence, what these precedents represent is the natural evolution of common law, and the organic branching of federal substantive rules through the ATCA, which “established a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.” This growth of federal decisional law gives expression to the longstanding principle that the law of nations has always been part of federal law. As a body of federal law develops under this approach, so as to give content to an ATCA right of action and thus fill in the interstices with federal decisional rules, the federal courts’ response acquires the virtues of uniformity and recognition of more diverse sources of substantive standards to draw upon in shaping remedies for adjudication of ATCA claims. The advantages of this approach were noted by the Xuncax court’s observation that: “[b]y not tethering [the ATCA] to causes of action and remedies previously developed under roughly analogous municipal law, federal courts will be better able to develop a uniform federal common law response to international law violations, a result consistent with the statute’s intent in conferring federal court jurisdiction over such actions in the first place.” Finally, a recent Second Circuit explication of Filartiga I is consistent with a reading that in appropriate cases would permit a choice of law determination not necessarily compelling dispositive application of foreign law where the municipal rule of decision may conflict with federal law or international standards. In Wiwa, the Circuit Court noted that under the choice of law analysis required by FU arti-ga I, the district court would determine whether international law, the law of the forum, or the law of the state where the events occurred should provide the substantive law to adjudicate the action. Wiwa acknowledges significant developments in the progression of international human rights law since Filartiga I was decided that affect the application of the doctrine enunciated by that case. Most significant of these advances was the enactment of the TVPA in 1991, which the Wiwa court construed as both ratifying the holding in Filartiga I and significantly carrying it further. The court noted that the TVPA not only grants federal jurisdiction, but makes it clear that it creates liability under United States law for torture and extrajudicial killing, and extends its remedy not just to aliens but to any individual. “The TVPA thus recognizes what was perhaps implicit in [the ATCA]— that the law of nations is incorporated into the law of the United States and that a violation of international law. of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law.” Implicit in all of these developments is that whatever virtue the Lauritzen choice of law analysis may have in the context of a maritime case, the evolution of international human rights law in the light of contemporary realities as reflected in the Second Circuit’s recognition of these developments, points to the necessity of staking out a more flexible course in the determination of the substantive law to be applied in adjudicating ATCA cases. Against this more ample exposition of the considerations that guide its decision, the Court proceeds to conduct its choice of law inquir ry as it pertains to Plaintiffs’ ATCA claims. C. CHOICE OF LAW ANALYSIS AND APPLICATION OF THE PERTINENT RULES OF DECISION Having examined the pertinent provisions of the Zimbabwe Constitution and relevant legal doctrine called to the Court’s attention in Plaintiffs submission, the Court is persuaded that this authority, though not explicitly creating defined causes of action as to all claims, sufficiently proscribes wrongful conduct and protects substantive rights encompassing Plaintiffs’ claims asserting (1) torture and extrajudicial killing, (2) cruel, inhuman or degrading treatment, (3) denial of political rights, and (4) systematic racial discrimination. The Court is not persuaded that a sufficient basis for recovery exists under international law for Plaintiffs’ claims asserting uncompensated seizure of their property. However, Plaintiffs have also sufficiently established legitimate grounds for recovery on their expropriation claims under Zimbabwe law. 1. Torture and Extrajudicial Killing In their Claims One and Two, Plaintiffs seek monetary relief under the TVPA and ATCA to redress the torture and extrajudicial killing of Metthew Pfebve, David Stevens and Tafuma Chiminya Tachiona. The Magistrate Judge found that these individuals had been subjected by an organized mob of ZANU-PF members to severe pain and suffering by means of torture before being brutally murdered. Specifically, the Magistrate Judge found as follows: a. Tapfuma Chiminya Tachiona Tapfuma Chiminya Tachiona was a founding member of the [Movement for Democratic Change “MDC”], the National Youth Organizer for the MDC, and a close companion of Morgan Tsvan-girai, the President of the MDC. On April 15, 2000, whole Mr. Chiminya was campaigning with Mr. Tsvangirai, a group of ZANU-PF supporters attacked them. Managing to escape, Mr. Chimin-ya drove injured colleagues to the hospital, after which he reported the incident to the police. On his way home from the police station, he and two other MDC supporters, Sanderson Makombe and Talent Mabika, were again stopped by ZANU-PF members, who began attacking them with knives and sticks. Mr. Makombe was able to escape through the window of the vehicle and hid in the nearby brush, but Mr. Chi-minya and Ms. Mabika remained trapped inside the truck as the assailants continued to beat them. Mr. Chi-minya was hit repeatedly in the head with the butt of a gun, according to Mr. Makombe. At that point, the assailants doused the vehicle with gas, causing the whole truck to go up in flames. The attackers then jumped in their vehicle and fled, soon after which Mr. Chiminya and Ms. Mabika managed to tumble out of the burning truck. Mr. Chiminya “was just like a ball of flames running across the tarred road,” according to Mr. Makombe. He ran toward a field and collapsed, but died before Mr. Ma-kombe could reach him. b. David Yendall Stevens David Stevens and his wife, Maria, owned a private commercial farm in Zimbabwe. Mr. Stevens was a known supporter of the MDC. On February 12, 2000, their farm was invaded by twenty-six ZANU-PF and ZWVA members and supporters. After that initial invasion, there have been a number of incidents of violence. For example, on two occasions, several female farm workers were assaulted and on one occasion, one was raped. Complaints to the police went unheeded.... On April 15, 2000, ZANU-PF and ZWVA members killed the Stevens’ dog and abducted David Stevens and five others. All six were severely beaten and tortured, and Mr. Stevens was forced to drink diesel oil. Several of Mr. Stevens’ neighbors observed the kidnapping and attempted to come to his aid by following his abductors to the police station. Once there, they were taken hostage as well, bound with rope, and driven away in two different vehicles. The men were tortured in a variety of ways, including being burned with cigarettes; beaten on the soles of their feet; beaten with rods, rocks and iron bars; hit in the face; and whipped with a fan belt from a car. In addition, their legs were cut with knives and they were threatened with having their ears and testicles cut off. Mr. Stevens was summarily executed later that same day. c. Mettheiv Pfebve [0]n April 29, 2000, ZANU-PF supporters approached the Pfebve home wielding axes, spears, sticks, and stones. The Pfebve family ran in different directions. Metthew Pfebve’s mother managed to run into the outhouse, but was eventually found and pelted with stones by the assailants. The plaintiff and his father were attacked with stones, sticks and fists, then dragged down the road. The plaintiffs father was eventually dropped unconscious on the road, suffering deep lacerations to his head and several broken fingers. Meanwhile, Metthew Pfebve was carried away by the assailants. He was found dead the next day, naked and lying in the middle of the road, approximately one and one-half kilometers from his home. He had been severely beaten. The plaintiffs allege that he was in all likelihood tortured prior to his death at or nearby a primary school which the defendant had turned into a torture camp. To vindicate Plaintiffs’ rights asserted in Claims One and Two, the Magistrate Judge recommended recovery of compensatory and punitive damages against ZANU-PF under both the TVPA and the ATCA. In Tachiona III, the Court adopted the Report’s recommendation of damages with regard to Plaintiffs’ claims of torture and extrajudicial killing under the TVPA. In considering Plaintiffs’ Claims One and Two under the ATCA, the Court notes that the Zimbabwe Constitution contains provisions that explicitly prohibit both torture and extrajudicial killing. Article 12(1) states that “No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offense of which he has been convicted.” Similarly, Article 15(1) declares in relevant part, with elaborations and exceptions not pertinent here, that: “No person shall be subjected to torture[.]” To vindicate rights protected by these provisions, the Zimbabwe legal system establishes civil remedies for victims of certain unlawful deprivations of an individual’s rights to life, person or property, as well as for infringements of dignity, reputation or liberty, committed by intentional conduct, including assault, extrajudicial killing and murder. These remedies enable claimants to recover both compensatory and punitive damages from the wrongdoers. The Court finds this authority sufficient to sustain the” Magistrate Judge’s recommendation of awards under ATCA of compensatory and punitive damages on Plaintiffs’ claims of torture and extrajudicial killing. Plaintiffs point out that their claims for torture and extrajudicial killing were filed under both the ATCA and the TVPA. They therefore urge that in addition or alternatively the Court consider the damages Plaintiffs are entitled to recover under the TVPA as undifferentiated damages awarded under the ATCA as well. The Court agrees. In enacting the TVPA to effectuate this country’s commitments under the Torture Convention, Congress gave express definition to causes of action arising under United States law specifying substantive rights and protections of individuals to be free from state-sponsored torture and extrajudicial killing. The Second Circuit has construed this Congressional mandate as embodying recognition that these actions, when committed by foreign states under color of law in violation of international law, “is ‘our business,’ as such conduct not only violates the standards of international law but also as a consequence violates our domestic law.” The Circuit Court thus not only gave expression to Congressional intent favoring the adjudication of TVPA claims in federal courts as a matter of United States policy, but also implicitly recognized that in considering the substantive law governing a cause of action invoking the TVPA the courts may apply federal law rights embodied in the TVPA’s definitions of torture and extrajudicial killing to adjudicate the dispute. The practical effect of this approach is to obviate the need, in connection with torture and extrajudicial killing claims asserted under the TVPA and the ATCA, to conduct and adhere to a strict choice of law analysis in accordance with Filartiga I, and to offer the courts the ability to apply substantive rights defined by federal law in cases where the law of the foreign state in question may be ambiguous, silent or even incompatible. To this effect, the Second Circuit noted in Radio that: “[t]he [TVPA] permits [claimants] to pursue their claims of official torture under the jurisdiction conferred by the [ATCA] and also under the general federal question jurisdiction of [28 U.S.C.] section 1831 . Accordingly, the Court adopts the Report’s recommendation that Plaintiffs be awarded compensatory and punitive damages on their Claims One and Two for torture and extrajudicial killing under the TVPA and the ATCA. 2. Denial of Political Rights Plaintiffs’ Claims Three and Four under the ATCA assert violations of certain political freedoms: denials of the rights of association, assembly, expression and beliefs and of the right to run for political office and participate in the state’s government. The Magistrate Judge recommended awards of compensatory and punitive damages with respect to these claims, finding that ZANU-PF systematically hounded its political opponents through repeated acts of terror and violence. According to the Magistrate Judge, ZANU-PF specifically targeted Plaintiffs’ association with the Movement for Democratic Change (“MDC”), an opposition political party: MDC supporters were constantly harassed, peaceful assemblies were interrupted by mobs of ZANU-PF supporters attacking MDC supporters, assassination attempts were made on MDC candidates, and MDC supporters were killed. The freedoms of political association, speech, beliefs and participation that Plaintiffs assert are recognized in various international instruments. The Universal Declaration contains several provisions itemizing individual rights that go to the essence of a person’s political expression and participation, including freedoms of thought and conscience; of opinion and expression; of peaceful assembly and association; and of participation in the government of the person’s country. Corresponding provisions are more particularized in the Civil and Political Rights Covenant. None of these sources, or other authorities elaborating on the scope, content and practical application of these rights, offers a particular definition or explicit guidance as to whether and to what extent universal consensus exists concerning the kinds of deprivations of political rights that are cognizable as violations of customary international law. However, the Second Circuit has recognized the significance of the Universal Declaration in “specifying]. with great precision the obligations of member nations under the [United Nations] Charter.” In this regard, the Filartiga I Court acknowledged scholarly opinion, which it cited favorably, for the view that the Universal Declaration “no longer fits into the dichotomy of ‘binding treaty’ against ‘non-binding pronouncement,’ but is rather an authoritative statement of the international community.” ’ Consistent with this proposition, the Circuit Court also noted that “several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law.” Thus, the elemental principles embodied in the Universal Declaration are not only repeatedly invoked by the international community in general pronouncements but have been adopted as part of the constitutions of many states around the world and as such are reflected concretely in applied- organic law. In considering with greater specificity the content and degree of universality accorded to the political rights at issue in the instant case, the Court must note that the world is characterized by fundamental diversity of political systems and established orthodoxies. A vast range of political thought and channels of expression exists around the globe. So, too, common tensions often prevail between individual and aggregate rights, and majorities versus minorities, on the one hand, and, on the other, the imperatives of maintaining territorial integrity, national security and internal public order, safety and health. Given these realities, the absence of a more particularized expression defining the precise contours of individual civil and political rights as customary international law is not surprising. Nonetheless, as sources of guidance for what qualifies as internationally recognized norms relating to the political rights Plaintiffs invoke, the Court may draw from general principles derived from international agreements, declarations and pronouncements on the particular subject, as well as from the general principles common to the world community’s major legal systems. In this connection, the Court considers relevant doctrine and expressions reflected in the Restatement of Foreign Relations and federal law principles, provisions of the Universal Declaration and the Civil and Political Rights Covenant, and interpretations and applications of these instruments by authoritative international and domestic bodies. a. The Restatement of Foreign Relations Reflecting the absence of greater particularity and universal understanding as to the civil and political rights encompassed within internationally recognized and obligatory norms, § 702 of the Restatement of Foreign Relations does not specifically enumerate denial of civil and political rights among the distinct state policies or practices that violate customary international human rights law. The Restatement § 702 lists as customary law the following violations of human rights: (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, and (g) a consistent pattern of gross violations of internationally recognized human rights. The Restatement notes that the human rights prohibitions enumerated in clauses (a) through (f) are peremptory norms (jus cogens) and are not subject to derogation in times of emergency. Nonetheless, in § 702(g) the Restatement identifies a general category of international human rights violations where, as a matter of policy, a state practices, encourages or condones “a consistent pattern of gross violations of internationally recognized human rights.” Among consistent patterns deemed “gross,” the Restatement cites as examples: “systematic harassment, invasions of the privacy of the home, arbitrary arrest and detention (even if not prolonged); ... denial of freedom of conscience ....” Several observations about § 702(g) are notable and pertinent to the instant case. First, because each of the violations listed in clauses (a) through (f) stands alone as having already acquired the requisite universal acceptance and definition to qualify as customary international law; the reference in clause (g) to “internationally recognized human rights” must comprise a residual body of protections and violations that, though articulated in global human rights declarations and instruments, standing alone presumably may not as yet have attained the authority of customary international law when considered as isolated incidences, but may rise to acquire such status when they satisfy the two specified standards: being both part of a “consistent pattern” and “gross” violations. In Kadic, the Second Circuit considered a somewhat analogous situation. It ruled that certain atrocities involving rape, torture and summary execution attributed ■ personally to the offender that ordinarily would require state action to qualify as violations of international law were cognizable under the ATCA without regard to state action insofar as they were committed in furtherance of misconduct, such as genocide or war crimes, that did constitute recognized jus cogens violations of international law for which private individuals may be held liable even absent state action. This reading and application would also be consistent with analogous federal law principles which hold that wrongful conduct by federal or municipal government officials is not actionable as violating certain constitutional prohibitions unless the underlying actions constitute a custom, policy or practice or, in the case of other constitutional standards, demonstrates conduct sufficiently gross to comprise reckless disregard or deliberate indifference for human life. Second, an interpretation of clause (g) that would define the violations it encompasses by reverting back to those already enumerated in clauses (a) through (f) would be tautological and render clause (g) meaningless. Third, the underlying concept of clause (g) is consistent with that of clause (f). Racial discrimination as such is universally denounced as incompatible with international norms. But under § 702(f) racial discrimination, when practiced, encouraged or condoned by the state, violates international human rights law only when it is “systematic”. Expressions of a concept similar to that embodied in Restatement § 702(g), articulating international concern and condemnation of “gross and systematic” violations of fundamental human rights, are reflected in various international pronouncements. As it pertains specifically to certain political rights, this principle is affirmed in the Proclamation of Teheran, which declares that: “Gross denials of human rights arising from discrimination on grounds of race, religion, belief or expressions of opinion outrage the conscience’ of mankind and endanger the foundations of freedom, justice and peace in the world.” b. The Civil and Political Rights Covenant The Civil and Political Rights Covenant does offer greater specific definition and guidance with regard to the freedoms here in question. It makes clear that even if perhaps not all of the civil and political rights enunciated in the Universal Declaration may garner global recognition satisfying the requisite standards of universality and specificity, and thus qualify as customary international law, not all of the proclaimed rights necessarily stand on the same footing. In fact, the Covenant itself manifests that some universal human rights already have attained sufficient definition and recognition among the individual freedoms that are entitled to protection as peremptory norms. The listing includes proscriptions concerning: the right to l