TVPA Lawsuit Against
Sri Lanka President Dismissed, after Administration Submits Delayed Suggestion
of Immunity
On February 29, Judge
Kollar-Kotelly of the District Court for the District of Columbia dismissed
a lawsuit brought under the Torture Victim Protection Act against
President Rajapaksa of Sri Lanka, based on a Suggestion
of Immunity filed on January 13 by the Obama Administration.
The suit against
Rajipaksa was filed in January 2011 by families of individuals allegedly killed
during the civil war in Sri Lanka by Sri Lankan security services under his
command responsibility.
the Administration’s
delay in recognizing the immunity of a sitting head of state
The Administration
delayed filing its Suggestion of Immunity for more than nine months after
receiving a request for immunity from the Sri Lankan Government. The
Administration did not file until after Judge Kollar-Kotelly formally requested
the views of the U.S. Government.
On January 13, 2012, the
Department of Justice filed a
Suggestion of Immunity (DO- not State Dept) asserting that “President
Rajapaksa, as the sitting head of a foreign state, enjoys head of state
immunity from the jurisdiction of U.S. courts in light of his current status.
President Rajapaksa is
entitled to immunity from the jurisdiction of this Court over this suit.”
The Justice Department’s filing
attached a letter from State Department Legal Adviser Harold Koh
stating that the “Department of State recognizes and allows the immunity of
President Rajapaksa as a sitting head of state from the jurisdiction of the
United States District Court in this suit.” Judge Kollar-Kotelly held
that the Suggestion of Immunity was binding on the Court.
The Administration’s
Suggestion of Immunity for Rajapaksa is consistent with longstanding State
Department practice. However, the Administration’s delay in
recognizing the immunity of a sitting head of state is unusual and may be
another indication that Obama
Administration officials want to appear to be more supportive of human rights litigation in U.S. courts against foreign
government officials.
This is the second time the Administration has delayed in asserting
immunity for a sitting head of a foreign state. Last year, in an Alien
Tort Statute case, the Administration waited for more than a year after
receiving a formal request for immunity from the Rwandan government before
filing a Suggestion of Immunity for
Rwandan President Paul Kagame.
A policy of delaying
recognition of the immunities of foreign government officials in U.S. courts is
likely to be viewed by other countries as inconsistent with international law
norms and could have adverse reciprocal implications for U.S. government
officials (including Obama Administration officials) who may be sued in foreign
courts (for example, for drone strikes).
(Disclosure: The Sri
Lankan government consulted me for advice in this matter.)
US court dismisses
lawsuit against Sri Lanka president
1 March 2012
in her ruling she said
that the dismissal was in "no way a reflection of the merits of
plaintiffs' claims or defendant's defences"
The plaintiffs
included families of students shot dead in the town of Trincomalee six years
ago, and relatives of aid workers for a French organisation killed near there
in August 2006.
No-one has been
prosecuted over the two sets of killings.
The plaintiffs say
they were killed by the security forces under Mr Rajapaksa's control but the
government has sought to implicate the Tamil Tigers.
Also taking part in
the lawsuit were relatives of a family killed as the military crushed the Tamil
Tigers in 2009.
They allege the four
people died in naval firing on displaced civilians in the government-declared
no-fire zone.
