A federal judge in Washington has dismissed a case charging the Sri Lankan president with the extrajudicial killings of three civilians, citing common law practices that exclude heads of state from prosecution while in office.
In the opinion, issued on Thursday, Judge Cathleen Kollar-Kotelly of U.S. District Court for the District of Columbia agreed with a suggestion of immunity filed by the U.S. State Department, dismissing the case against President Percy Rajapaksa that argued he should be held responsible for the killings under the Torture Victims Protection Act (TVPA).
Despite agreeing to dismiss the case on jurisdictional grounds, Kollar-Kotelly was quick to note that the decision was based solely on long-established case law regarding the sovereign immunity enjoyed by sitting heads of state.
"The Court does not take this step lightly," she wrote. "The Plaintiffs’ Complaint contains shocking allegations of human rights abuses and violations of United States and international law. The Court’s dismissal of this case is in no way a reflection of the merits of Plaintiffs’ claims or Defendant’s defenses."
In an interview Thursday afternoon, Bruce Fein of Bruce Fein & Associates, the attorney for the plaintiffs, took issue with the judge's application of international common law to the language of the TVPA, which allows for a civil action to be brought against an individual with real or perceived authority who engages in or orders torture or extrajudicial killings.
Calling the judge's reasoning "mystifying," he argued that the use of the word "individual" in the law, combined with the lack of a clause extending sovereign immunity to current leaders, indicated the intention for the statute to apply to sitting heads of state. He also derided the judge's acceptance of the State Department's suggestion of immunity as binding and not subject to judicial review, saying that this goes against established administrative standards.
"How did she come up with how international common law applies if Congress did not specify" this in the law, he asked. "The judge basically said that Congress, in enacting the TVPA, delegated to the executive branch unreviewable discretionary powers."
Kollar-Kotelly, however, pointed to the U.S. Supreme Court's 2010 decision in Samantar v. Yousuf, which ruled that common law practices should continue following the creation of new statutes that address the same area unless it is clear that Congress intended otherwise. To answer this question, she pointed to a House report that accompanied the TVPA which stated that the law was not meant to override doctrines of diplomatic immunity.
"The clear statutory purpose behind the TVPA was to maintain the common law doctrine of head of state immunity, not override it," she wrote in the opinion. "To the extent Plaintiffs are correct that immunizing heads of state from liability under the TVPA runs contrary to the general purposes of the statute, that contradiction was recognized by Congress before the statute was enacted, and the Court is not in a position to remedy that contradiction."
Fein pointed to the problems that could follow from this ruling, especially in the case of the ongoing battle between the government and protestors in Syria.
"This would mean that the president in Syria is immune for the atrocities there," he said.
The original complaint was filed on Jan. 28, 2011, by family members of the deceased, all members of the Tamil ethnic minority who were killed in three separate incidents — two in 2006 and one in 2009. That document paints a picture of the Rajapaksa administration as one of intimidation and persecution of Tamil civilians during the country's 26-year battle with the Liberation Tigers of Tamil Ealam, a terrorist organization that played a major role in the country's civil war.
A press release from the Sri Lankan embassy in Washington following the decision said the government of Sri Lanka "has vehemently denied violating human rights laws during the lengthy conflict against terrorism."