Shavendra Silva's Attorneys Move for Dismissal in Letter to Judge
'Filing a formal motion would dignify the action against the diplomat.'
'Colonel Ramesh'
Invoking the Vienna Convention as well as United States law that give diplomats 'absolute immunity,' attorneys for Ambassador Shavendra Silva, Deputy Sri Lanka Permanent Representative at the UN, have moved for a dismissal of the civil action brought against the former brigadier general by two Sri Lankans, one of whom is the wife of a Tamil Tiger 'colonel' killed during the last days of the offensive by Sri Lankan forces against the terrorist group.
Saying it did not want to dignify the action against Ambassador Silva by filing a formal motion to dismiss, the law firm of Skadden, Arps, Slate, Meagher & Flom, representing the ambassador, has submitted only a letter to New York US District Judge Paul Oetken urging immediate dismissal. Pointing out that Article 31 of the Vienna Convention precludes any civil action from proceeding against a currently-serving diplomat, regardless of the nature of the allegations, and citing case law, it adds: "Moreover... diplomatic immunity prohibits any attempt to effect service of process upon a serving diplomat. Accordingly, the purported efforts to "serve" Ambassador Silva with the current Complaint are wholly invalid - indeed improper."
Contravening well-established international guarantees of immunity, a private investigator turned up at Ambassador Silva's private residence in an attempt to 'serve' the diplomat. "Compounding matters, the attempted 'service was video-taped and posted on YouTube. These actions are wholly inconsistent with the treatment that members of the United Nations diplomatic comunity are entitled to receive under the Vienna Convention, CPIUN, and the United Nations Headquarters Agreement, all of which are predicated on the inviolability of a diplomat's person and private residence."
Attorney Timothy Nelson who is representing Ambassador Silva urged Judge Oetken to dismiss the suit, with prejudice, adding that a formal motion to quash service or a motion to dismiss would be filed if the court insisted upon it. "... we arefully willing and prepared to do so. But, as we are sure the Court will appreciate, we are reluctant to engage in motion practice that would in any dignify the alleged attempts at 'service' on the Ambassador."
The case was filed in September in the Southern District of New York by UNROW, the American University Washington College of Law’s Human Rights Impact Litigation Clinic on behalf of Vathsala Devi, wife of LTTE militant 'Colonel Ramesh' and Seetharam Sivam.
Saying it did not want to dignify the action against Ambassador Silva by filing a formal motion to dismiss, the law firm of Skadden, Arps, Slate, Meagher & Flom, representing the ambassador, has submitted only a letter to New York US District Judge Paul Oetken urging immediate dismissal. Pointing out that Article 31 of the Vienna Convention precludes any civil action from proceeding against a currently-serving diplomat, regardless of the nature of the allegations, and citing case law, it adds: "Moreover... diplomatic immunity prohibits any attempt to effect service of process upon a serving diplomat. Accordingly, the purported efforts to "serve" Ambassador Silva with the current Complaint are wholly invalid - indeed improper."
Contravening well-established international guarantees of immunity, a private investigator turned up at Ambassador Silva's private residence in an attempt to 'serve' the diplomat. "Compounding matters, the attempted 'service was video-taped and posted on YouTube. These actions are wholly inconsistent with the treatment that members of the United Nations diplomatic comunity are entitled to receive under the Vienna Convention, CPIUN, and the United Nations Headquarters Agreement, all of which are predicated on the inviolability of a diplomat's person and private residence."
Attorney Timothy Nelson who is representing Ambassador Silva urged Judge Oetken to dismiss the suit, with prejudice, adding that a formal motion to quash service or a motion to dismiss would be filed if the court insisted upon it. "... we arefully willing and prepared to do so. But, as we are sure the Court will appreciate, we are reluctant to engage in motion practice that would in any dignify the alleged attempts at 'service' on the Ambassador."
The case was filed in September in the Southern District of New York by UNROW, the American University Washington College of Law’s Human Rights Impact Litigation Clinic on behalf of Vathsala Devi, wife of LTTE militant 'Colonel Ramesh' and Seetharam Sivam.
The civil cases filed recently in the US against President Rajapaksa and Sri Lanka’s Deputy Permanent Representative to the UN Major Gen Shavendra Silva, demonstrate how an emboldened LTTE rump is using legalized terror to continue its separatist agenda. Tort appears to be the preferred substitute for suicide jackets as the US courts are used to stalk, intimidate, and harass Sri Lankan officials. One of the hallmarks of lawfare, whether waged by Al Qaeda suspects against the US or Hamas supporters against Israel, is its fronting by a fraternity of NGOs which lack transparency, are not held accountable to any democratic checks or principles, and yet wield enormous power, to the extent of subverting a country’s foreign policy and interfering with its diplomatic relations and internal systems.
Ditto in the lawfare waged against Sri Lanka.
Both cases, using the Alien Tort Statute, were brought by Vathsala Devi wife of notorious LTTE terrorist militant ‘Colonel Ramesh’ whose brutal crimes include the mass killings of over 400 unarmed policemen rounded up by the Tigers during one of their many ‘ceasefires.’ The case against President Rajapaksa was filed in the Southern District of New York by Attorney Visuvanathan Rudrakumaran who heads the LTTE rump as ‘Prime Minister’ of the Transnational Government of Tamil Eelam (TGTE).
The news about the filings date stamped September 23 instantly lit up the LTTE blogosphere and the international media. Interestingly, Rudrakumaran appears to have been more in a hurry to get to the press than complying with court filing requirements. The court had to send an email to him on September 27 reminding him to submit the PDF of the complaint in accordance with its electronic filing rules.
The Sri Lankan government has not made an official response to the case against President Rajapaksa but has rebuffed attempts to have summons served on Major General Silva. According to the complaint, filed by Attorney Ali Abed Beydoun, Vathsala Devi is claiming her husband after he had surrendered on or about May 18, 2009. Seetharam Sivam, the other plaintiff in the case, is alleging that his father Sithar Sivam was killed when the army allegedly shelled Puthukkudiyiruppu Hospital where he was receiving treatment. The charges against Maj Gen Silva include ‘torture, cruel inhuman treatment, and infliction of emotional distress, negligence, and wrongful death.’
In a statement, the Ministry of External Affairs said as the Deputy Permanent Representative of Sri Lanka to the United Nations in New York enjoys diplomatic immunities and privileges accorded under the Convention on Privileges and Immunities of the United Nations as well as the Vienna Convention on Diplomatic Relations. Therefore, Ambassador Shavendra Silva is protected by the relevant international treaties on diplomatic relations, immunities and privileges and accepted diplomatic practices.
“Consequently, it would be the responsibility of the host nation and the United Nations to ensure that Ambassador Shavendra Silva’s ability to conduct his duties as a diplomat of Sri Lanka is not hindered in any way by such disruptive activities.”
The claim of diplomatic immunity would have come as no surprise to Attorney Ali Abed Beydoun shown in the complaint as representing an NGO named SPEAK and the American University of Washington’s UNROW legal clinic.
In a media statement after the filing of the complaint, Beydoun thunders:
“These egregious violations of international and domestic law have gone unanswered for two years now … finally after waiting for someone to answer for the loss of loved ones, the voices of Tamil victims and survivors have been granted their day in Court.”
Mr. Beydoun is jumping the gun somewhat, (the ‘day in court,’ before a jury, is a long way off) while trying to carve out some moral high ground for ‘Col. Ramesh’ by portraying him as a victim.
While he’s trying to impress that his interest in the case is purely as a bleeding heart humanist, Mr. Beydoun has ties to the LTTE rump and its political agenda and UNROW is apparently championing a political cause behind the façade of seeking justice for the widow of a slain militant. It is not by accident that Beydoun and the ‘Prime Minister’ of the TGTE are representing the same plaintiff. Beydoun could be considered a TGTE insider given that he was one of the speakers at its inauguration ceremony, held at the United Nations Plaza Hotel in New York between September 29-31 last year. The TGTE’s constitution was ratified and its elections of office bearers held at that event. Reports said he addressed the gathering in his capacity as Executive Director of UNROW, along with other LTTE supporters such as former U.S. Attorney General Mr. Ramsey Clark and Deputy Chief Minister of Penang (Malaysia) Professor Ramasamy.
UNROW in its Wiki admits to this advocacy role in the Tamil issue. The headline of a paragraph in the Wiki says it plainly: “International Human Rights: Tamil Advocacy.” And then:
“On September 22, 2010, UNROW released a new report calling for the establishment of a new international tribunal to prosecute those most responsible for the crimes committed during the conflict. UNROW will continue to press for fair and imparital [sic] accountability mechanisms on behalf of their client.”
UNROW cannot be separated from the massive international NGO drive to delegitimize Sri Lanka as much by its closeness to the TGTE as by the declarations made on the website of its partner in the lawsuit against Rajapaksa, a group that calls itself “SPEAK.”
SPEAK’s Home page is devoted almost entirely to Sri Lanka and it boasts of a network that is a veritable ‘who’s who’ of the anti Sri Lanka cartel including Human Rights Watch, Amnesty International, and International Crisis Group. There’s also the lesser-known Operation USA, a Los Angeles based non-profit which once proudly billed itself as a partner of the Tamil Rehabilitation Organization.
"SPEAK, in collaboration with UNROW, has also been publicly recognized as an authority in the Tamil struggle for justice and legal remedies.... Further, SPEAK's partners have spoken at several public events discussing the Tamil struggle for justice. Such venues include the University of Madras, Boston College Law School, and at American University [sic].”
This vague and generalized reference to the Tamil cause being advocated at the University of Madras prompts several possibilities. The University was indeed the venue for a very interesting event in June 2009 when the New York-based International Tamil Center, allegedly another LTTE front, celebrated its third anniversary. In addition to several Tamil Nadu LTTE supporters talking about the ‘Tamil struggle’ were pro-LTTE attorneys Bruce Fein and Francis Boyle exhorting India to support the Eelam separatist cause. Is SPEAK referring to this event? Could SPEAK’s partners have been discussing the ‘Tamil struggle for justice’ at events organized at the University of Madras by LTTE supporter Fr. Jagath Gaspar Raj? Fr. Gaspar Raj’s association with the infamous Nachimuthu Socrates, who was arrested by FBI on charges of fund-raising for LTTE and bribing a US State Official to remove LTTE from the list of blacklisted organisations way back in 2006. Gaspar Raj has also been in the news recently after his NGO, Tamil Maiyam, was raided by detectives investigating the ‘2G Kickback Scam’ that has shaken India. Kanimozhi (LTTE supporter and daughter of former TN Chief Karunanidhi) a trustee of Tamil Maiyam has been arrested and Gaspar Raj has been questioned in the ongoing investigations. There is widespread speculation that some of the kickbacks were going to the LTTE.
Underlying ‘lawfare’ is the concept of ‘universal jurisdiction’ which is based on the theory that certain crimes are of “such exceptional gravity that they affect the fundamental interests of the international community as a whole” and national courts should be empowered, if not required, to prosecute the offenders. At the helm of the ‘Universal jurisdiction’ drive are, not surprisingly, Amnesty International and Human Rights Watch. In a June 2006 press release that accompanied HRW’s 101-page survey of universal jurisdiction statutes in Europe, the NGO states that “[p]rosecutors in Europe are using the concept of universal jurisdiction to pursue foreign war criminals
in national courts, a strategy that is gaining momentum across the continent and should be expanded.”
With the flurry of activity in US courts and such ominous optimistic predictions, will Sri Lanka prevail against lawfare?
One considerable factor counterweighting the NGO empire is the Israeli lobby. Sri Lanka and others caught in lawfare might enjoy some trickle-down effects from this.
An example of the Israeli’s lobby’s influence is seen in developments in the UK recently stemming from the Tzipi Livni issue. As a result of NGOs seeking her arrest for alleged war crimes when she served as foreign minister during the 2008-09 Gaza war, Israeli Opposition leader Tzipi Livni was forced to cancel a 2009 visit to Britain. Similarly, among other such incidents, a high level group of Israeli officers en route to the UK for a joint security conference was forced to cancel their trip to the UK in 2010 because of the same law. That changed last month when the Police Reform and Social Responsibility Act was amended. “[The amendment] ensure[s] that the U.K.’s justice system can no longer be abused for political reasons,” British Ambassador to Israel Matthew Gould said in an official statement published on the British Embassy's website. “The change will ensure that people cannot be detained when there is no realistic chance of prosecution, while ensuring that we continue to honor our international obligations ... This amendment requires the Director of Public Prosecutions to consent to the issuing of an arrest warrant for crimes of universal jurisdiction, and will put an end to requests for warrants where there is no realistic chance of prosecution.”
The director of public prosecutions will now be required to give his consent for an arrest warrant to be issued on the grounds of universal jurisdiction. Previously, a magistrate was able to give consent. This is not a bilateral issue and the law will apply to citizens of other countries, not just Israel.
A case that particularly encouraging to ‘lawfare’ wagers in the US, using the Alien Tort Statute/Torture Victims Protection Act, have been greatly encouraged by the landmark Samantar case. Two plaintiffs (backed by NGOs) filed claims against Mohamed Ali Samantar, the former Prime Minister and Minister of Defense of Somalia, alleging that he was personally liable for a systematic use of torture and killing of civilians by Somali intelligence agencies during the 1980s.
In 2007, U.S. District Judge Leonie Brinkema dismissed the case and determined that Samantar was entitled to immunity under federal law. But last year, the U.S. Supreme Court reversed and sent the case back to Brinkema for further deliberation on whether Samantar deserved immunity.
Brinkema sought and received a rare “statement of interest” from the State Department which said Samantar should not be entitled to immunity, because, among other factors, there is no recognized government in Somalia that can request immunity on his behalf. The case is proceeding to jury trial.
But legal analysts see the Samantar case as the exception. In addition to the fact that there is no comparison between the Somali and Sri Lankan situations, US judges are not particularly fond of ATS cases which, a US Court of Appeals once observed, , attempt to engage courts “in the micro-management of military targeting decisions” and are not cases such as those
against “an Idi Amin or a Mao Zedong.”
In fact, in recent months there have been several court decisions that are of relevance to Sri Lanka. The Eleventh Circuit in August dismissed an Alien Tort Statute suit brought against the former President and former Defense Minister of Bolivia (Gonzalo Sanchez de Lozada and Jose Carlos Sanchez Berzain) by the Center for Constitutional Rights (CCR), a New York-based legal rights group that has filed dozens of such cases. (CCR has also waged a long legal battle in the US courts on behalf of the LTTE). The former Bolivian government officials were charged in connection with military and police actions they had ordered to quell civil unrest in La Paz, Bolivia in 2003. The plaintiffs sought compensatory and punitive damages. Judge James Edmondson concluded that the plaintiffs had made only “bare assertions” and “legal conclusions” about the conduct of Bolivia’s leaders, rather than the specific factual allegations required by the Supreme Court ( Ashcroft v. Iqbal). Even if the plaintiffs’ assertions were accepted as sufficiently pled, they still did not provide evidence of extrajudicial killings or crimes against humanity under international law.
The following are excerpts from the court decision:
“Stating a plausible claim for relief requires pleading ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged’: this obligation requires “more than a sheer possibility that a defendant has acted unlawfully. While plaintiffs need not include “detailed
factual allegations,” they must plead “more than an unadorned, the- defendant-unlawfully-harmed-me accusation.”
“We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.”
Last month, a federal court in Washington ruled that former Colombian President Alvaro Uribe enjoys residual immunity from being forced to testify as a witness in an Alien Tort Statute/Torture Victims Protection Act suit against Drummond Company. (Uribe had been been served with the subpoena last November by a Georgetown University law student while the former President was teaching at Georgetown.) The case is significant since this is the first to address the question of immunity of foreign government officials after the Samantar case. Judge John Bates’ decision was taken following the State Department’s statement of interest written by Legal Adviser Harold Koh. The State Department suggested immunity for Uribe, stating that the former President “enjoys residual immunity from this Court’s jurisdiction insofar as Plaintiffs seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official.” The statement was consistent with past State Department positions regarding the residual immunity of former government officials.
Although Uribe was not a defendant, legal analysts see the outcome of the case as an indicator of how the immunity issue in cases against foreign government officials charged under ATS will be adjudicated: by asking the State Department to weigh in.
While the powerful NGO cartels are relentlessly jamming the courts with lawfare, cheered on by the liberal media, there is growing concern about their impact on diplomacy, America’s relations with her allies, the threat to American military officers when they travel abroad, and even their repercussions on national security. Some of the concern arises from the fact that ATS is being invoked against corporations and multinational companies for aiding and abetting human rights violations by governments.
In an article titled “The U.S. Can’t Be the World’s Court,” (WSJ),Washington Attorney John B. Bellinger cautions that suits under the Alien Tort Statute are inconsistent with international legal rules governing extraterritorial jurisdiction. “For all their complaints about U.S. attitudes toward international law, foreign governments and international lawyers do not see this litigation as constructive engagement. Instead, they consider the U.S. a rogue actor that has unilaterally established an international civil court with universal jurisdiction.”
Bellinger who served for five years as a legal adviser to the State Department adds: “Human rights should be promoted in most cases through direct diplomatic engagement and corporate responsibility, not through litigation that causes diplomatic friction and that may be inconsistent with international law.”
Related Links
‘We Will Become A Power Centre’ – LTTE’s legal adviser Visuvanathan Rudrakumaran
Sri Lankan Tamils still want Eelam - Rudrakumaran
Ditto in the lawfare waged against Sri Lanka.
Both cases, using the Alien Tort Statute, were brought by Vathsala Devi wife of notorious LTTE terrorist militant ‘Colonel Ramesh’ whose brutal crimes include the mass killings of over 400 unarmed policemen rounded up by the Tigers during one of their many ‘ceasefires.’ The case against President Rajapaksa was filed in the Southern District of New York by Attorney Visuvanathan Rudrakumaran who heads the LTTE rump as ‘Prime Minister’ of the Transnational Government of Tamil Eelam (TGTE).
The news about the filings date stamped September 23 instantly lit up the LTTE blogosphere and the international media. Interestingly, Rudrakumaran appears to have been more in a hurry to get to the press than complying with court filing requirements. The court had to send an email to him on September 27 reminding him to submit the PDF of the complaint in accordance with its electronic filing rules.
The Sri Lankan government has not made an official response to the case against President Rajapaksa but has rebuffed attempts to have summons served on Major General Silva. According to the complaint, filed by Attorney Ali Abed Beydoun, Vathsala Devi is claiming her husband after he had surrendered on or about May 18, 2009. Seetharam Sivam, the other plaintiff in the case, is alleging that his father Sithar Sivam was killed when the army allegedly shelled Puthukkudiyiruppu Hospital where he was receiving treatment. The charges against Maj Gen Silva include ‘torture, cruel inhuman treatment, and infliction of emotional distress, negligence, and wrongful death.’
In a statement, the Ministry of External Affairs said as the Deputy Permanent Representative of Sri Lanka to the United Nations in New York enjoys diplomatic immunities and privileges accorded under the Convention on Privileges and Immunities of the United Nations as well as the Vienna Convention on Diplomatic Relations. Therefore, Ambassador Shavendra Silva is protected by the relevant international treaties on diplomatic relations, immunities and privileges and accepted diplomatic practices.
“Consequently, it would be the responsibility of the host nation and the United Nations to ensure that Ambassador Shavendra Silva’s ability to conduct his duties as a diplomat of Sri Lanka is not hindered in any way by such disruptive activities.”
The claim of diplomatic immunity would have come as no surprise to Attorney Ali Abed Beydoun shown in the complaint as representing an NGO named SPEAK and the American University of Washington’s UNROW legal clinic.
In a media statement after the filing of the complaint, Beydoun thunders:
“These egregious violations of international and domestic law have gone unanswered for two years now … finally after waiting for someone to answer for the loss of loved ones, the voices of Tamil victims and survivors have been granted their day in Court.”
Mr. Beydoun is jumping the gun somewhat, (the ‘day in court,’ before a jury, is a long way off) while trying to carve out some moral high ground for ‘Col. Ramesh’ by portraying him as a victim.
While he’s trying to impress that his interest in the case is purely as a bleeding heart humanist, Mr. Beydoun has ties to the LTTE rump and its political agenda and UNROW is apparently championing a political cause behind the façade of seeking justice for the widow of a slain militant. It is not by accident that Beydoun and the ‘Prime Minister’ of the TGTE are representing the same plaintiff. Beydoun could be considered a TGTE insider given that he was one of the speakers at its inauguration ceremony, held at the United Nations Plaza Hotel in New York between September 29-31 last year. The TGTE’s constitution was ratified and its elections of office bearers held at that event. Reports said he addressed the gathering in his capacity as Executive Director of UNROW, along with other LTTE supporters such as former U.S. Attorney General Mr. Ramsey Clark and Deputy Chief Minister of Penang (Malaysia) Professor Ramasamy.
UNROW in its Wiki admits to this advocacy role in the Tamil issue. The headline of a paragraph in the Wiki says it plainly: “International Human Rights: Tamil Advocacy.” And then:
“On September 22, 2010, UNROW released a new report calling for the establishment of a new international tribunal to prosecute those most responsible for the crimes committed during the conflict. UNROW will continue to press for fair and imparital [sic] accountability mechanisms on behalf of their client.”
UNROW cannot be separated from the massive international NGO drive to delegitimize Sri Lanka as much by its closeness to the TGTE as by the declarations made on the website of its partner in the lawsuit against Rajapaksa, a group that calls itself “SPEAK.”
SPEAK’s Home page is devoted almost entirely to Sri Lanka and it boasts of a network that is a veritable ‘who’s who’ of the anti Sri Lanka cartel including Human Rights Watch, Amnesty International, and International Crisis Group. There’s also the lesser-known Operation USA, a Los Angeles based non-profit which once proudly billed itself as a partner of the Tamil Rehabilitation Organization.
"SPEAK, in collaboration with UNROW, has also been publicly recognized as an authority in the Tamil struggle for justice and legal remedies.... Further, SPEAK's partners have spoken at several public events discussing the Tamil struggle for justice. Such venues include the University of Madras, Boston College Law School, and at American University [sic].”
This vague and generalized reference to the Tamil cause being advocated at the University of Madras prompts several possibilities. The University was indeed the venue for a very interesting event in June 2009 when the New York-based International Tamil Center, allegedly another LTTE front, celebrated its third anniversary. In addition to several Tamil Nadu LTTE supporters talking about the ‘Tamil struggle’ were pro-LTTE attorneys Bruce Fein and Francis Boyle exhorting India to support the Eelam separatist cause. Is SPEAK referring to this event? Could SPEAK’s partners have been discussing the ‘Tamil struggle for justice’ at events organized at the University of Madras by LTTE supporter Fr. Jagath Gaspar Raj? Fr. Gaspar Raj’s association with the infamous Nachimuthu Socrates, who was arrested by FBI on charges of fund-raising for LTTE and bribing a US State Official to remove LTTE from the list of blacklisted organisations way back in 2006. Gaspar Raj has also been in the news recently after his NGO, Tamil Maiyam, was raided by detectives investigating the ‘2G Kickback Scam’ that has shaken India. Kanimozhi (LTTE supporter and daughter of former TN Chief Karunanidhi) a trustee of Tamil Maiyam has been arrested and Gaspar Raj has been questioned in the ongoing investigations. There is widespread speculation that some of the kickbacks were going to the LTTE.
Underlying ‘lawfare’ is the concept of ‘universal jurisdiction’ which is based on the theory that certain crimes are of “such exceptional gravity that they affect the fundamental interests of the international community as a whole” and national courts should be empowered, if not required, to prosecute the offenders. At the helm of the ‘Universal jurisdiction’ drive are, not surprisingly, Amnesty International and Human Rights Watch. In a June 2006 press release that accompanied HRW’s 101-page survey of universal jurisdiction statutes in Europe, the NGO states that “[p]rosecutors in Europe are using the concept of universal jurisdiction to pursue foreign war criminals
in national courts, a strategy that is gaining momentum across the continent and should be expanded.”
With the flurry of activity in US courts and such ominous optimistic predictions, will Sri Lanka prevail against lawfare?
One considerable factor counterweighting the NGO empire is the Israeli lobby. Sri Lanka and others caught in lawfare might enjoy some trickle-down effects from this.
An example of the Israeli’s lobby’s influence is seen in developments in the UK recently stemming from the Tzipi Livni issue. As a result of NGOs seeking her arrest for alleged war crimes when she served as foreign minister during the 2008-09 Gaza war, Israeli Opposition leader Tzipi Livni was forced to cancel a 2009 visit to Britain. Similarly, among other such incidents, a high level group of Israeli officers en route to the UK for a joint security conference was forced to cancel their trip to the UK in 2010 because of the same law. That changed last month when the Police Reform and Social Responsibility Act was amended. “[The amendment] ensure[s] that the U.K.’s justice system can no longer be abused for political reasons,” British Ambassador to Israel Matthew Gould said in an official statement published on the British Embassy's website. “The change will ensure that people cannot be detained when there is no realistic chance of prosecution, while ensuring that we continue to honor our international obligations ... This amendment requires the Director of Public Prosecutions to consent to the issuing of an arrest warrant for crimes of universal jurisdiction, and will put an end to requests for warrants where there is no realistic chance of prosecution.”
The director of public prosecutions will now be required to give his consent for an arrest warrant to be issued on the grounds of universal jurisdiction. Previously, a magistrate was able to give consent. This is not a bilateral issue and the law will apply to citizens of other countries, not just Israel.
A case that particularly encouraging to ‘lawfare’ wagers in the US, using the Alien Tort Statute/Torture Victims Protection Act, have been greatly encouraged by the landmark Samantar case. Two plaintiffs (backed by NGOs) filed claims against Mohamed Ali Samantar, the former Prime Minister and Minister of Defense of Somalia, alleging that he was personally liable for a systematic use of torture and killing of civilians by Somali intelligence agencies during the 1980s.
In 2007, U.S. District Judge Leonie Brinkema dismissed the case and determined that Samantar was entitled to immunity under federal law. But last year, the U.S. Supreme Court reversed and sent the case back to Brinkema for further deliberation on whether Samantar deserved immunity.
Brinkema sought and received a rare “statement of interest” from the State Department which said Samantar should not be entitled to immunity, because, among other factors, there is no recognized government in Somalia that can request immunity on his behalf. The case is proceeding to jury trial.
But legal analysts see the Samantar case as the exception. In addition to the fact that there is no comparison between the Somali and Sri Lankan situations, US judges are not particularly fond of ATS cases which, a US Court of Appeals once observed, , attempt to engage courts “in the micro-management of military targeting decisions” and are not cases such as those
against “an Idi Amin or a Mao Zedong.”
In fact, in recent months there have been several court decisions that are of relevance to Sri Lanka. The Eleventh Circuit in August dismissed an Alien Tort Statute suit brought against the former President and former Defense Minister of Bolivia (Gonzalo Sanchez de Lozada and Jose Carlos Sanchez Berzain) by the Center for Constitutional Rights (CCR), a New York-based legal rights group that has filed dozens of such cases. (CCR has also waged a long legal battle in the US courts on behalf of the LTTE). The former Bolivian government officials were charged in connection with military and police actions they had ordered to quell civil unrest in La Paz, Bolivia in 2003. The plaintiffs sought compensatory and punitive damages. Judge James Edmondson concluded that the plaintiffs had made only “bare assertions” and “legal conclusions” about the conduct of Bolivia’s leaders, rather than the specific factual allegations required by the Supreme Court ( Ashcroft v. Iqbal). Even if the plaintiffs’ assertions were accepted as sufficiently pled, they still did not provide evidence of extrajudicial killings or crimes against humanity under international law.
The following are excerpts from the court decision:
“Stating a plausible claim for relief requires pleading ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged’: this obligation requires “more than a sheer possibility that a defendant has acted unlawfully. While plaintiffs need not include “detailed
factual allegations,” they must plead “more than an unadorned, the- defendant-unlawfully-harmed-me accusation.”
“We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.”
Last month, a federal court in Washington ruled that former Colombian President Alvaro Uribe enjoys residual immunity from being forced to testify as a witness in an Alien Tort Statute/Torture Victims Protection Act suit against Drummond Company. (Uribe had been been served with the subpoena last November by a Georgetown University law student while the former President was teaching at Georgetown.) The case is significant since this is the first to address the question of immunity of foreign government officials after the Samantar case. Judge John Bates’ decision was taken following the State Department’s statement of interest written by Legal Adviser Harold Koh. The State Department suggested immunity for Uribe, stating that the former President “enjoys residual immunity from this Court’s jurisdiction insofar as Plaintiffs seek information (i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his official capacity as a government official.” The statement was consistent with past State Department positions regarding the residual immunity of former government officials.
Although Uribe was not a defendant, legal analysts see the outcome of the case as an indicator of how the immunity issue in cases against foreign government officials charged under ATS will be adjudicated: by asking the State Department to weigh in.
While the powerful NGO cartels are relentlessly jamming the courts with lawfare, cheered on by the liberal media, there is growing concern about their impact on diplomacy, America’s relations with her allies, the threat to American military officers when they travel abroad, and even their repercussions on national security. Some of the concern arises from the fact that ATS is being invoked against corporations and multinational companies for aiding and abetting human rights violations by governments.
In an article titled “The U.S. Can’t Be the World’s Court,” (WSJ),Washington Attorney John B. Bellinger cautions that suits under the Alien Tort Statute are inconsistent with international legal rules governing extraterritorial jurisdiction. “For all their complaints about U.S. attitudes toward international law, foreign governments and international lawyers do not see this litigation as constructive engagement. Instead, they consider the U.S. a rogue actor that has unilaterally established an international civil court with universal jurisdiction.”
Bellinger who served for five years as a legal adviser to the State Department adds: “Human rights should be promoted in most cases through direct diplomatic engagement and corporate responsibility, not through litigation that causes diplomatic friction and that may be inconsistent with international law.”
Related Links
‘We Will Become A Power Centre’ – LTTE’s legal adviser Visuvanathan Rudrakumaran
Sri Lankan Tamils still want Eelam - Rudrakumaran