Govt. fears judgment against Rajapakse in US Courts

(June 27, Colombo, Sri Lanka Guardian) The Sri Lanka Attorney General’s Department is to “retain a lawyer to oversee the [Sri Lanka’s] President’s interests in the US District Court which had issued the summons on Rajapaksa,” latest edition of Sunday Leader said quoting Justice Ministry Secretary Suhada Gamlath. The statement reflects a change in strategy by Sri Lanka’s Justice Ministry which said last week that it had received the summons but the [Sri Lankan] government would not respond to it. “Under our laws, the President has immunity,” Gamlath had told the media last week.

Failure by the defendant Rajapakse to answer the initial complaint will allow the court to decide on default judgment for the plaintiffs on liability without allowing any opposing motions from the defendant to rebut future plaintiffs’ motions, legal sources in Washington said.

To establish damages, however, the Court may arrange a hearing, according to the same legal sources.

While Sri Lanka may have thought of relying on the doctrine of sovereign immunity to escape justice, Bruce Fein, attorney for the plaintiffs told TamilNet, “Head of State immunity should not bar our TVPA suit against President Rajapaksa. The immunity is not jurisdictional, but would need to be pleaded as a defense.

“Moreover, it is discretionary with the US State Department whether to advance a head of state defense. Most important, the head of state doctrine applies only to “official acts.” The current trend of the case law is to hold that torture or extra-judicial killings are not “official” acts because they are universal crimes or torts. Decisions made in prosecutions against Manual Noreiga, Ferdinand Marcos, General Pinochet, and Slobodan Milosevic are illustrative.

“Thus, we will argue that Rajapaksa’s complicity in extra-judicial killings is outside the protection of head of state immunity. Note also that, the Rome Statute of the International Criminal Court denies head of state immunity for genocide, war crimes, or crimes against humanity as indicated by outstanding indictment of Sudan’s President Omar Bashir.

Attorney Fein said Sunday after reviewing the court docket for this case that there have not been any communication from Colombo to the court, nor are there any indication of an attorney representing Rajapakse.

Spokesperson for the US-based activist group Tamils Against Genocide (TAG), said, “we are preparing to file a motion seeking a default judgment against Rajapakse from District Court of Columbia judge Colleen Kollar−Kotelly. To support our tort claims we will also be soliciting amicus briefs from known premier human rights organizations and legal scholars. We hope that we will be able to elicit a precedent setting decision from the US Courts that officials who are complicit in perpetrating war-crimes or crimes against humanity cannot escape judicial sanctions by hiding behind the veil of sovereignty.”

TAG filed the case in District Court of District of Columbia on behalf of three Sri Lankan Tamils living in the U.S and UK, claiming damages from the Rajapakse as commander-in-chief of the Sri Lankan armed forces for the alleged killing of Ragihar Manoharan, one of five students extrajudicially executed in the Trincomalee-5 massacre of 2006, the killing of Anandarajah, one of the seventeen staff of the Action Against Hunger (ACF), who were extra-judicially executed during the war in the east during June 2006, and the killing of Jeyakumar's relatives inside the safety-bunker the family was hiding from discriminate artillery attack by the SLA situated around the No Fire Zone demarcated by the Colombo government during the last phases of the war.