U.S. Department of State

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DR. ALFRED HARTMANN, YVES C. LAMARCHE,
JOHAN DIDERIK VAN OENEN,

Plaintiffs, -
against -

SHEIKH ZAYED BIN SULTAN AL-NAHYAN,
SHEIKH KHALIFA BIN ZAYED AL-NAHYAN
GHANIM FARIS AL-MAZRUI, MOHAMMED

HABROUSH AL SUWEIDI, JAUAN SALEM AL
DHAHERI, ZAFAR IQBAL CHAUDHRI,

ABU DHABI INVESTMENT AUTHORITY,

DEPARTMENT OF PRIVATE AFFAIRS OF SHEIKH
ZAYED BIN SULTAN AL-NAYAN, AGHA HASAN
ABEDI, SWALEH NAQVI,

Defendants.

SUGGESTION OF IMMUNITY
SUBMITTED BY THE UNITED STATES OF AMERICA

MARY JO WHITE
United States Attorney for the
Southern District of New York
Attorney for the United States of America

FRANK W. HUNGER
Assistant Attorney General
United States Department of Justice

Of Counsel:

CONRAD K. HARPER
Legal Adviser
United States Department of State

M. CHINTA GASTON (MCG - 8392)
Assistant United States Attorney
1000 Church Street, 19th Floor
New York, New York 10007
Telephone: (212) 385-6376

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DR. ALFRED HARTMANN, YVES C. LAMARCHE, JOHAN DIDERIK VAN OENEN,

SHEIKH ZAYED BIN SULTAN AL-NAHYAN, SHEIKH KHALIFA BIN ZAYED AL-NAHYAN GHANIM FARIS AL-MAZRUI, MOHAMMED

HABROUSH AL SUWEIDI, JAUAN SALEM AL DHAHERI, ZAFAR IQBAL CHAUDHRI,

ABU DHABI INVESTMENT AUTHORITY,

DEPARTMENT OF PRIVATE AFFAIRS OF SHEIKH : ZAYED BIN SULTAN AL-NAYAN, AGHA HASAN ABEDI, SWALEH NAQVI,

SUGGESTION OF IMMUNITY
SUBMITTED BY THE UNITED STATES OF AMERICA

The United States of America, by its attorney Mary Jo White, United States Attorney for the Southern District of New York, pursuant to 28 U.S.C. � 517¹, respectfully informs the Court of the interest of the United States in the pending lawsuit against defendant Sheikh Zayed Bin Sultan Al-Nahyan, the sitting head of state of the United Arab Emirates, and suggests to the Court the immunity of President Zayed. In support of its interest and suggestion, the United States sets forth as follows:

1.The United States has an interest in this action against President Zayed insofar as the action involves the question of immunity from the Court's jurisdiction of the head of state of a friendly foreign state. The interest of the United States arises from a determination by the Executive Branch of the Government of the United States, in the implementation of its foreign policy and in the conduct of its international relations, that permitting this action to proceed against President Zayed would be incompatible with United States' foreign policy interests. As discussed below, this determination should be given effect by this Court.

2. The Legal Adviser of the United States Department of State ("the Legal Adviser") has informed the Department of Justice that the Government of the United Arab Emirates has formally requested that the Government of the United States suggest the immunity of President Zayed from this lawsuit. The Legal Adviser has further informed the Department of Justice that the "Department of State recognizes and allows the immunity of President Zayed from this suit." Letter from Conrad K. Harper to Frank W. Hunger dated January 6, 1995 (copy attached as Exhibit 1).

3. Under a doctrine of customary international law recognized and applied in the United States, and pursuant to this Suggestion of Immunity, President Zayed, as the head of a foreign state, is immune from the jurisdiction of the Court in this case. See, e.g., Georg Schwarzenberger and E.D. Brown, A Manual of International Law 81 (6th ed. 1976) (copy of cited excerpt attached as Exhibit 2); James L. Brierly, The Law of Nations 254-55 (Humphrey Waldock ed., 6th ed. 1963) (copy of cited excerpt attached as Exhibit 3).

4. The Supreme Court of the United States has mandated that the courts of the United States are bound by suggestions of immunity, such as this suggestion, submitted to the courts by the Executive Branch. See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35-36 (1945); Ex Parte Peru, 318 U.S. 578, 588-89 (1943).2 In Ex Parte Peru, the Supreme Court, without further review of the Executive Branch's determination regarding immunity, declared that the Executive Branch's suggestion of immunity "must be accepted by the courts as a conclusive determination by the political arm of the Government" that the retention of jurisdiction by the courts would jeopardize the conduct of foreign relations. Ex Parte Peru, 318 U.S. at 589. See also Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974). Accordingly, where, as here, immunity has been recognized by the Executive Branch and a suggestion of immunity is filed, it is the "court's duty" to surrender jurisdiction. Ex Parte Peru, 318 U.S. at 588. See also Hoffman, 324 U.S. at 35; Gerhard von Glahn, Law Among Nations 136-37 (6th ed. 1992) (copy of cited excerpt attached as Exhibit 6).

5. The courts of the United States have heeded the Supreme Court's direction regarding suggestions of immunity submitted by the Executive Branch. See, e.g., Alicoq v. Kingdom of Saudi Arabia, 860 F. Supp. 379, 382 (S.D. Tex. 1994) (suggestion of King Fahd's immunity as head of state of Saudi Arabia held to require dismissal of complaint against King Fad for false imprisonment and abuse); LaFontant, 844 F. Supp. at 139 (suggestion of Haitian President Aristide's immunity held to require dismissal of case alleging that President Aristide ordered murder of plaintiff's husband); Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988), aff'd in part and rev'd in part on other grounds, 886 F.2d 438, 441 (D.C. Cir. 1989), cert denied, 495 U.S. 932 (1990) (suggestion of Prime Minister Thatcher's immunity conclusive in dismissing suit that alleged British complicity in U.S. air strikes against Libya); Gerritsen, slip op at 7-9 (suit against Mexican President De la Madrid and others for conspiracy to deprive plaintiff of constitutional rights, dismissed as against President De la Madrid pursuant to suggestion of immunity); Domingo, slip op. at 2-4 (action alleging political conspiracy by, among others, then President Ferdinand E. Marcos and then First Lady Imelda Marcos, respectively, of the Republic of the Philippines, dismissed as against them pursuant to suggestion of. immunity); Psinakis v. Marcos, No. C-75-1725-RHS (N.D. Cal. 1975), result reported in Sovereign Immunity, 1975 Digest of U.S. Practice of Int'l Law � 7,

4

at 344-45 (libel action against then President Marcos dismissed pursuant to suggestion of immunity) (copy of cited excerpt attached as Exhibit 7); Guardian F. v. Archdiocese of San Antonio, Cause No. 93-CI-11345 (Tex. Dist. Ct. Mar. 15, 1994) (copy attached as Exhibit 8) (suggestion of immunity required dismissal of suit against Pope John Paul II); Anonymous v. Anonymous, 581 N.Y.S. 2d 776, 777 (1st Dep't 1992) (divorce suit against head of state dismissed pursuant to suggestion of immunity).

6. Judicial deference to the Executive Branch's suggestions of immunity is predicated on compelling considerations arising out of the conduct of our foreign relations. Spacil, 489 F.2d at 619. First, as the Spacil court explained,

Id. (citing United States v. Lee, 106 U.S. 196, 209 (1882)). See also Ex Parte Peru, 318 U.S. at 588. Second, the Executive Branch possesses substantial institutional resources to pursue and extensive experience to conduct the country's foreign affairs. See Spacil, 489 F.2d at 619. By comparison, "the judiciary is particularly ill-equipped to second-guess" the Executive Branch's determinations affecting the country's interests. Id. Finally, and "[p]erhaps more importantly, in the chess game that is diplomacy only the executive has a view of the entire board and an understanding of the relationship between isolated moves." Id.

For the foregoing reasons, the United States respectfully suggests the immunity of President Zayed in this action.

Of Counsel:

CONRAD K. HARPER, Legal Adviser,

United States Department of State.