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
    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.



Latest 15 Reports
01.07.20 13:22  
New secret unit among four SL military and police squads competing to arrest Tamil youth in North
30.06.20 22:10  
Tamils blocked from accessing properties near SL Navy training base in Champoor, Trincomalee
29.06.20 23:29   Photo
Moragoda advising Gotabaya prompts Sinhala parties to scrap Provincial Councils
28.06.20 22:06  
India privileging BRIC/RIC over Quad ‘discordant’, says former US top diplomat
27.06.20 22:11  
Indo-Pacific expert wants US to seek opportunities in ‘Sri Lanka’
26.06.20 21:24  
Russia steps up influence on New Delhi to uphold “multilateralism” against US “rules-based order”
25.06.20 23:53  
Pompeo talks about US reposturing troops, mentions India, Vietnam, Malaysia and Indonesia
24.06.20 23:36   Photo
Devananda circumvents court order, manipulates Jaffna fishers to allow poachers from South
23.06.20 22:03  
Sinhala encroachment of pastureland continues unabated in Batticaloa
22.06.20 18:17  
SLMC Chairman: Time for joint Tamil-Muslim efforts
21.06.20 23:11   Photo
Ex-councillor: Poverty-stricken Tamils at receiving end of SL military brutality in North
20.06.20 23:53   Photo
Tamil man killed, Sinhala Army opens fire at motorbike rider at Mukamaalai in North
19.06.20 23:30  
Dr Amir Ali: SL Archaeology aims to obliterate Tamil traces, shrink territory of Muslims in East
18.06.20 21:02  
Colombo steps up surveillance harassment on organisations operating in East
17.06.20 22:12  
SL military cordons off Jaffna islet with war-time like harassment, families fear reprisals
Find this article at: