Court to decide if US can save Rajapakse from war-crime charges

[TamilNet, Sunday, 19 February 2012, 02:38 GMT]
The United States Department of State, in its response to three Tamil plaintiffs' opposing arguments to the US's suggestion of immunity for Sri Lanka's President Mahinda Rajapakse from alleged war-crimes, said that the plaintiffs have asked the Court to "ignore the substantial and unanimous body of authority recognizing the controlling nature" of US's immunity determination, and that US's earlier submission adequately explained why the Court should recognize Rajapakse's immunity from the suit. Plaintiff's attorney said the US Government has failed to adequately address why the Court should pre-empt judicial review when under TVPA "an individual" has allegedly committed "universally repugnant" crimes, and is insolently insisting on the dispositiveness of US's determination on immunity. A ruling is expected from Judge Kotelly soon.

The Department of Justice reasserts the following three "brief points" in response to plaintiffs' opposition to immunity:

1. The US President's foreign relations power is constitutionally derived. Also US asserts that there is "no" indication that Congress intended to interfere with Executive authority on the immunity issue when it enacted TVPA;
2. U.S. contends that creation of statutory right of action does not automatically override "preexisting" immunity rules;and
3. In view of the above two principles, US says, the Court should join the "unanimous body of authority" recognizing US's "unreviewable" authority to make immunity determinations.

Spokesperson for Tamils Against Genocide (TAG), a US-based activist group that is sponsoring the case on behalf of three Tamil plaintiffs, said: "[t]he Executive Branch's purportedly unreviewable authority to make immunity determinations may not permissibly transgress the boundary between the Executive and the Judiciary, between suggesting and instructing a finding of immunity.

"Under the doctrine of separation of powers, the Court as an independent, neutral, and detached organ of America's constitutional democracy has the authority and capacity to arrive at its own immunity determinations, taking relevant facts such as the body of authority and Executive Branch's position into consideration.

"Special circumstances, such jus cogens norms violations may, in the interests of justice, warrant case-by-case deviations from immunity determinations suggested by the Executive or case law. Such independent judgments constitute the touchstone of American constitutionalism and its common law legal system," TAG spokesperson told TamilNet.

Judge Kotelly of District Court of District of Columbia will rule on the immunity issue, and if she deems there is sufficient merit in the both parties' arguments, Judge Kotelly might also rule if an oral argument is warranted and if the case should go forward.

The complaint for this case (alleges multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

Chronology: