Plaintiffs file opposition to suggestion of immunity in war crimes case against Rajapakse


WASHINGTON DC: Plaintiffs in the War crimes case against Sri Lanka’s President Rajapakse on Friday (February 3) filed a memorandum of opposition to the suggestion of immunity by the United States of America and requested for oral argument on the matter.

President Rajapakse: Reason to be agitated?

The Plaintiffs through their attorney Bruce Fein submitted that the Torture Victims Protection Act  is not an indiscriminate attempt by Congress to subject any individual (including foreign heads of state) to civil litigation in the United States but rather narrowly confined to the most heinous universal crimes imaginable—on a moral par with genocide or crimes against humanity.

The Memorandum goes on to state that , “The Defendant fits the type of individual Congress wished to subject to liability under the TVPA like a glove. His notoriety for war crimes and atrocities ranks with Iran’s Ayatollahs and Libya’s Gaddafi. He has been accused of responsibility for, among other things, extrajudicial killings, kidnapping, war crimes, and torture. These crimes have been well documented, including video footage in a documentary prepared by an esteemed British television network. Words would only cheapen the suffering of the victims of Defendant’s vileness. Defendant’s accusers range from his own former Commander of the Army, Sarath Fonseka  to well-respected international human rights groups Human Rights Watch and Amnesty International, from the UN Secretary-General’s Panel of Experts to the United States’ Department of State itself, including its ambassador to Sri Lanka.”

The Memorandum quotes from the most recent U.S. Department of State Human Rights Report dated April 8, 2011 on Sri Lanka thus: “There were reports that the government or its agents committed arbitrary or unlawful killings, but reliable statistics on such killings by the government or its paramilitary allies were difficult to obtain because past complainants were killed and families feared reprisals if they filed complaints.”

The document alleges that “The government did not conduct any further inquiries into the high-profile cases investigated by the Commission of Inquiry (“COI”), including the 2006 killing in Mutur of 17 local staff of the French NGO Action Against Hunger (“ACF”).9 The COI was disbanded in June 2009 without issuing a public report, though unofficial reports indicating that the commission had blamed ACF for allowing its workers to be in an unsafe location while at the same time exonerating all government security forces from any possible involvement in the killing of the aid workers. In addition, there was zero progress on the January 2009 killing of the chief editor of the Sunday Leader and Morning Leader newspapers, Lasantha Wickrematunge.

” Moreover, Defendant monopolizes power in Sri Lanka reminiscent of Stalin in the Soviet Union. Id. page 1. (“The government is dominated by the president’s family; two of the president’s brothers hold key executive branch posts as defense secretary and minister of economic development, while a third brother is the speaker of parliament.”) Omnipotent heads of state, like the Defendant, are armed with the greatest ability to perpetrate or orchestrate mass torture or extrajudicial killings that Congress sought to deter with the TVPA. Nothing significant happens in Sri Lanka without Defendant’s endorsement. To carve out a sitting head of state exception to the TVPA for Defendant would cripple its deterrent and compensatory purposes, akin to an exception for Adolph Hitler for crimes prosecuted at Nuremburg or payment of reparations to Holocaust victims.”

On the matter of the suggestion of immunity Plaintiffs Memorandum states that

“Contrary to the insinuation of the United States, the sitting head of state immunity issue pivots solely on an interpretation of the words “an individual” in the Torture

President Rajapakse and India's Prime Minister Manmohan Singh

Victim Protection Act (the “TVPA”). 28 U.S.C. § 1350 (1991). The statute was enacted pursuant to the express power of Congress under Article I, Section 8, Clause 10 of the U.S. Constitution to punish violations of the law of nations, which inarguably includes both torture or extrajudicial killings. In other words, the TVPA is undoubtedly constitutional. The Executive Branch does not argue otherwise. There is no basis for departing from the plain language of the TVPA to avoid a serious constitutional question. The President signed the statute into law nearly twenty years ago on March 12, 1992.”

“The TVPA creates liability against “an individual” who tortures or perpetrates an extrajudicial killing under the apparent or actual authority of any foreign nation. … The plain language of the statute makes no exceptions irrespective of the office an individual might occupy or the circumstances of the crimes universally abhorred. The Executive Branch insolently maintains that this Court must obey its directive to dismiss this TVPA case that rests upon universally repugnant crimes in violation of the law of nations. To bow to that command would be to permit usurpation of the judicial power by the Executive. Article III of the Constitution entrusts the “judicial power” of the United States to this Court and sister independent federal tribunals. Plaintiffs’ TVPA claims clearly fall within the judicial power of this Court to adjudicate, through statutory interpretation, a time-honored Article III task from the inception of the Constitution. Every relevant canon of statutory interpretation militates against the Executive’s Suggestion of Immunity.”

Plaintiffs also argue that the purpose of the TVPA is to create a civil cause of action in federal court for the universal crimes of torture and extrajudicial killing. The congressional objective behind the TVPA, the memorandum states was to fortify human rights around the world by endowing federal courts with jurisdiction to compensate the victims of the universal crimes and to deter repetition of the despicable acts.

On the question of the Executive’s sole responsibility to represent the nation in foreign relations the memorandum states as follows:

“The Executive impertinently argues that it possesses the sole and dispositive power to immunize the Defendant Rajapaksa from civil liability under the TVPA. The Executive does not argue that Congress has conferred such extraordinary power. Neither does the Executive point to the Constitution as endowing the President with authority to decide the outcome of an Article III case. The Executive seems to argue that its draconian power is derived from some “brooding omnipresence in the sky,” to borrow from the inimitable Justice Oliver Wendell Holmes….”

“The Suggestion (of immunity by the executive) states in Paragraph 1 that “the Constitution assigns to the U.S. President alone the responsibility to represent the Nation in its foreign relations.” True enough. But to represent the Nation in its foreign relations is not the power to decide what foreign policy the President shall represent. The Constitution entrusts that power to both Congress and the President….”

Earlier on January 13,  the United States filed a Suggestion of Immunity in court and said in a status report it recognized the immunity of President Mahinda Rajapaksa, who is the President and sitting head of state of the Democratic Socialist Republic of Sri Lanka.

The report also stated that the United States believed that its determination regarding President Rajapaksa’s immunity is dispositive of this matter and therefore it will not address either the political question doctrine or the Act of State doctrine at this time.

The documents were filed in court following a letter to Tony West Assistant Attorney General from the legal Adviser of the U.S. Department of State Harold Hongju Koh.

The Plaintiffs in the civil suit filed in the US District Court of the District of Columbia under The Torture Victims Protection Act are seeking damages in excess of $30 million against President Rajapakse for actions allegedly occurring under his command responsibility as Head of State and Commander-in-Chief of the Armed Forces.

The complaint alleged that President Rajapakse held command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and first husband of Plaintiff Kalaiselvi Lavan, and four members of the Tevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

See documents below




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