2ND LEAD

Rajapakse depends on U.S. to defend War Crimes charges

[TamilNet, Friday, 02 November 2012, 00:48 GMT]
Sri Lanka's President Mahinda Rajapakse filed his reply brief at the United States Court of Appeals for the District of Columbia Thurdsay in response to the opening brief filed by the three Tamil Plaintiffs-Appellants in the case, Kasippillai Manoharan versus Percy Mahendra Rajpakse, attorney for the appellants Bruce Fein said. "Rajapakse attorneys again appear to depend on the Department of Justice of the United States to reassert the "suggestion of immunity" and for the Appeals judges accept, as did the trial court, to defend Rajapakse on the charges of war-crimes," legal sources in Washington said.

The appeal was filed by three Tamils against Rajapakse for complicity in extrajudicial killings of plaintiffs relatives in violation of the Torture Victims Protection Act (TVPA). The case, first filed at the lower court, was dismissed in February 2012 by Judge Kotelly after the U.S. State Department intervened to assert that, as a sitting head of state, Rajapakse was immune from litigation.

Mitchell Berger and Benjamin Wood at the Washington Law firm Patton Boggs LLP, appearing as Counsel for Mahinda Rajapaksa, in the brief, argue that,

• Rajapaksa did Not Appear on the Merits in the District Court and Expressly Reserved All Jurisdictional and Other Defenses,
• The United States’ Suggestion of Immunity Bound the District Court and Divested It of Jurisdiction, and
• The United States, Expected to Participate as Amicus Curiae, Is the Proper Party to Advocate for Affirmance of the District Court Decision.

In addition to other cases, the Appellee's attorneys cite Belhas v. Moshe Ya’Alon, 515 F.3d 1279, 1287 (D.C. Cir. 2008), that the pre- Samantar holding that TVPA did not eliminate foreign official immunity under the FSIA even for alleged jus cogens violations.

The appellants' had, in the opening brief, argued that District Court erred in the following legal issues when rendering the earlier ruling dismissing the case:

Bruce Fein, former US Associate Deputy Attorney General
• the Court "erred in conceiving Customary International Law (CIL) as including discretionary as opposed to obligatory rules and by slighting the Convention Against Torture and the Rome Statute in determining whether CIL has evolved since the TVPA to permit civil suits against sitting heads of state for the universal crimes of torture and extrajudicial killing which do not paralyze a foreign government as would a criminal arrest or imprisonment of a sitting Head of State,"
• the District Court misinterpreted the TVPA by reliance on inconclusive legislative history in lieu of plain statutory text.
• the District Court further stumbled by neglecting the constitutional foreign policy prerogatives of Congress under Article I, Section 8, Clause 10 to sanction violations of the law of nations at variance with the President’s preferred realpolitik.

As the Court notes, "All issues and arguments must be raised by appellants in the opening brief. The court ordinarily will not consider issues and arguments raised for the first time in the reply brief."

The briefing schedule indicates that the US Justice Department, if it intends, should file the Amicus Curiae (friend of the court) brief by 8th November, and the appellants should file the reply brief by 23rd November. The Court is then expected to schedule an oral argument.

Chronology: