In July 2003, CJA submitted an amicus brief in support of the plaintiffs in an Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) case against President Robert Mugabe of Zimbabwe, former Foreign Minister Stan Mudenge, and their political party, the Zimbabwe African National Union – Patriotic Front (ZANU – PF). The plaintiffs sought redress for torture, assault, execution, and other acts of violence committed by ZANU-PF members on the orders of ZANU-PF officials.
Several months after the defendants were served with process, the executive branch of the U.S. government filed a suggestion of immunity on behalf of Mugabe and Mudenge. In response, the plaintiffs argued that the Foreign Sovereign Immunities Act (FSIA) – not the government’s suggestion of immunity – governs determinations of head-of-state immunity, and that the FSIA did not afford Mugabe and Mudenge immunity in the present case because the allegations were made concerning conduct in their non-official capacities.
The District Court for the Southern District of New York dismissed the claims against Mugabe and Mudenge in accord with the government’s suggestion of immunity, but it entered a default judgment against ZANU-PF. The court reasoned that neither head-of-state immunity nor diplomatic immunity could shield foreign officials from service of process as agents for a private entity and that therefore, that Mugabe and Mudenge could be served as agents for ZANU-PF. The U.S. government appealed to the Second Circuit Court of Appeals.
In our brief, we argued that the United States does not satisfy constitutional standing requirements for an appeal, particularly that: (i) there is no constitutional injury in fact, because the district court acted properly in reviewing the government’s suggestion regarding the scope of head-of-state immunity; and (ii) issues concerning the scope of head-of-state immunity are properly matters for judicial discretion.
The Second Circuit Court of Appeals heard Tachiona v. United States in October 2004. The court held that the claims against Mugabe and Mudenge were properly dismissed on the grounds of diplomatic immunity, and it ordered that the remaining claims against ZANU-PF be dismissed. The court ruled that the diplomatic immunity enjoyed by Mugabe and Mudenge barred the plaintiffs from serving them with process, even though the defendants were served in their capacities as agents of a private entity and not as diplomats or agents of a foreign government.