It is reported August 23rd, that the issue of Head of State Immunity for Sri Lankan President, Mr. Mahinda Rajapaska, in the case of Vathsala Devi v. Mahinda Rajapaksa (Docket# 11-CIV-6634) was argued in the US District Court, Southern District of New York.
Visuvanathan Rudrakumaran (Left)
The Tamil widow of Thurairajasingham (Colonel Ramesh) brought an action against Mahinda Rajapaksa, the sitting President of Sri Lanka and the agents under his control. She is asking for compensatory and punitive damages for torture, inhumane treatment and war crimes inflicted by the defendant in violation of the laws of the United States and International Law.
Judge Naomi Reice Buchwald Presided over the case argued by Mr. Visuvanathan Rudrakumaran, Esq who appeared for the plaintiff. The State Department was represented by Amy A. Barcelo Assistant US Attorney. Ali Abed Beydoun argued on behalf of Speak Human Rights and Environmental Initiative, which filed an amicus curiae brief in support of Plaintiff’s position.
The issue in the case is whether it should be dismissed pursuant to the Suggestion of Immunity submitted by the US State Department.
Pursuant to the request by the Sri Lankan President the US Department of State filed the Suggestion of Immunity stating, “the Department of State recognizes and allows the immunity of President Rajapaksa as a sitting head of state from the jurisdiction of the United States District Court.”
The Plaintiff argued that the Department of State lacks a legal basis, namely the law making authority, to file the Suggestion of Immunity and under emerging customary international law violations of jus cogens norms, namely torture, genocide, crimes against humanity & war crimes, pierced the veil of immunity.
The Department of State argues that for the last 160 years courts have accepted the State Department’s determination of Head of State Immunity. The amici argued the State Department’s determination violates the separation of powers.
The judge made an observation that the fact Congress has not amended the law to eliminate the State Department’s role suggests that it acquiesces the State Department’s position.
The Judge reserved the decision.
Courtesy US Politics Today
rufus / August 24, 2012
If the president was in power at the time and if he was the Defense minister he holds all powers and responsibilities under the Human rights act and international law should be implemented . He has NO RIGHTS to violate another humans rights because he is the president of a country. He should be brought to justify his orders given to the forces at the time of civil war. If he thinks that he is above the INTERNATIONAL Law TODAY . He is a dictator with the help of his own siblings. IF THE LAW FINDS HIM NOT GUILTY THEN THE NAZI WAR CRIMES SHOULD BE ALSO PARDONED.
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John Wayne / August 25, 2012
Rajapassa is entertaining dictators and dubious heads of state – the Maldivian dood accused of a coup and the King of Swaziland an absolute monarch in a dirt-poor country!
Clearly, the Rajapassa regime in Lanka is an international out caste and no presidential impunity or immunity will change that any time soon! Thus no international leader of any stature or reputation will visit Lanka on a bi-lateral basis, while the is a war criminal in charge in lanka.
Hence the desperate desire to hold the multilateral Commonwealth heads of State meeting — which will be boycotted by many who do not want to be associated with a family of war criminals – ruling this unfortunate land today!
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American Lanka Lover / August 25, 2012
Not true! President Rajapakse was duly elected in an election validated as free and fair by the international community (twice!). Thus there is no comparison to the illegitimate presidency of Mr. Waheed of the Maldives who was vice president until he participated in the coup that overthrew the Democratically elected President of the Maldives, Mohammed Nasheed (AKA Anni), on February 7 of this year. As much as you may dislike the policies of the current government, its’ legitmaacy is unequivocal.
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mike / August 25, 2012
Are you Bandula Jayasekera?????
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gamini / August 26, 2012
More American than Lanka Lover, you are talking through your hat. MR the first time he contested the North and East were prevented and a majority in the South were taken of the list, and had that number was allowed to vote, would have over run the slender majority he received. When Ranil Wickremasinghe wanted to take the matter up at International level, it is the very perpetrators who assisted MR adviced RW not to. Then the second time around he distorted the result making himself the winner by forcing the Elections Commissionner. Why do not you focus on events in your own country without trying to distort facts here and displaying your ignorance?
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gamini / August 26, 2012
Mike, I too had the same hunch. These are the brave Patriots who hide behind supposed white skins?
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ayanthirkg / September 4, 2012
Well said John. Why do you love Lanka from America? Just mind your own business . Do not talk about what you do not know.
On the other hand did these colonel Romesh not kill innocent civilians ? Howmanycould he have killed?
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Kalpana / August 25, 2012
Why are these Tamil Diaspora jokers filing cases against MR who has Presidential immnity and wasting time and resources, rather than against Gota the White van Goon who was Defense Secretary and also has command responsibility? Goon Gots has not got presidential immunity and is a US citizen who is accountable and under US jurisdiction?
Maybe they do not want to actually win a case but want to keep things simmering and profit at the expense of people’s misery –like the LTTE?!
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kumudini / August 27, 2012
Are you going nuts ? on which planet are you from ?Kalpana or wikalpana
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Donald Duck / August 25, 2012
Good point – why not strike where it would be most effective – file a case against Gotabaya and take him out to the Hague or LA?! These diasporat jokers are clearly not serious in holding the war criminals of Lanka responsible but only want to keep things simmering..
Meanwhile Lanka is on a roller coaster ride called DEVELOPEMNT THAT DESTROYS. the latest is the oil washing up on shore while the Ministry of Disaster Managment has just spent millions of bucks buying 8 nuclear disaster warning devises – while the ship was sinking -Wonder who got the kickbacks for so many nuclear disaster warning devises in tiny Lanka?!
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Donald Gnanakone / August 25, 2012
@Rufus, You do not comprehend the US laws.
President Rajapakse and diplomat Major General Shavendra De Silva does have diplomatic immunity and HOS immunity in the US.
The comments of the judge is obvious indication but I have said publicly many times past 4 years.
Palitha Kohonne too enjoys diplomatic immunity. But not in Australia. Tamils in Australia are still collecting evidence against him and writing letters to the Federal Police. lol. LMAO.
However, US citizens and residents do not have any immunity in the US, and they cannot be taken to the courts in Hague. US courts have jurisdiction on them, and Rudrakumar, and Senator Jeyalingam are fully aware of it, when Bruce Fein and I as Founder of the Tamils For Justice explained in private discussions with Ilangai Tamil Sangam in 2007 on the project at their AGM.
The current Prime Minister of the TGTE, many MP’s and Senators had no interest whatsoever, and gave lame excuses, including it costs a lot of money. This includes TAG, TRO, TAPI, USTPAC, ITS, CTC, and WTM all in North America. Some of the current GTF and others in UK excluding Surendran and many from above sabotaged the project. Including Senator Senewiratne a first cousin he claims of former President Chandrika Bandaranayake. He has publicly admitted it. Suren was not in the active Tamil scene then.
So it is not surprising that all collectively or individually have not filed a single case against any of the 4 US citizens and residents. Other US citizen is former Minister of Justice who supervised and operated the concentration camps.
There is a preponderance of evidence now against them all, unlike in 2007-2008 and still the two US attorneys who have collected a million dollars or more from the Tamils in the past 5 years haven’t filed a single motion against the 4 mentioned above.
Bruce Fein represents Tamils Against Genocide since August 2008, but no cases against the US citizens… Paid press statements via Press web does not bring any relief or justice to victims and their families of war crimes and crimes against humanity.
Anyway, all hope is not lost for Tamils who keep crying for Justice. There is a small group of Tamils who will file legal action against the US citizens and residents soon since they are sick and tired of bogus promises and accusations that Tamils are just vexatious litigants filing action against whom US courts have no jurisdiction.
Not surprisingly, none of the US citizens or residents visit the US for considerable period of time.
This dysfunctional situation will end soon and that will not be in cyber space.
Tamils For Justice.
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punchinilame / August 28, 2012
The point you mention has already been debated and it was stated
that legally the chain of command matters, as charging the servant
boy instead of the Master based on the kind of violence is a legal
issue?
The US Citizens involved are aware their time is getting closer and
the verdict awaited will lead to the next stage – be patient.
The hurry is for MR and so he has now decided to make S.L. the
Chinese Base. All needed activities are in progress. He expects
USA to bargain with him to cut off China, similar to what USA
does with N.Korea over Neucler Race? Global politics are at play
and the Tamils will have to wait another Regime USA or Chinese
oriented Govt. to be in the scene?
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American Lanka Lover / August 25, 2012
For once Donald speaks the truth when he acknowldges that the case must be dismissed as the defendants are immune from suit for official acts. And the immunity is “absolute”, as opposed to a qualified immunity which can be vitiated in specific circumstances. So this complaint is “frivolous”, and under Federal Rule of Civil Procedure 11, the attorney who signed the complaint can be sanctioned and attorneys fees awarded to the defendants. The Minister of Defense is protected by this same immunity. Terror has lost on the battlefield that is the US Court system just as decisively as it lost at Nandikadal.
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Donald Gnanakone / August 25, 2012
This Sinhala racist chauvinist coward of an attorney writes rubbish.
My opinion has been clear and consistent for 5 years and there has been no vacillation on that issue.
The two Tamil paid American attorneys, and old members of TGTE et al are fully aware of my position.
War Criminals have only won a temporary and Pyrrhic victory in May 2009 against 3-4,000 Tamil liberation fighters using chemical weapons, and other illegal weapons. They are also losing the battle of State Terrorism.
30 year civil war war has ended, and to combat State Terrorism there will be many legal wars, (US Courts) diplomatic wars, (UNHRC, UN, Commonwealth, and other lobbying) economic wars, (Sanctions, Boycott, GSP, Trade investment and Tourism and more) trade union wars, (TU action in South Indian Ports and air ports), and every other legitimate wars ( Oxford, London Commonwealth, Olympics and more) that will be fought by the 1 million diaspora, 66 million Tamils from India, and millions of Tamils worldwide as well as other millions of supporters.
This will be more effective than some young teenagers fighting the military machinery of a 3 Billion annual military budget (With loans) and 250,000 strength. Sadly, Tamils have been left with no other choice to deal with the jingoistic, racist-chauvinist extremist regime who practice state terrorism.
So be warned and there was no Olympics for a single Rajapakse.
No ships in Hambantota and no planes landing in MRMR moda airport next year except the Mihin Air and SL Airlines. The losses will build up, and their will be divine sanctions as well like Parakrama Samudra drying up. The poor farmers will suffer because of the curses of the GODS like how the Egyptians suffered and were exposed to the wrath of the Gods.
There will be a price for murder, torture and rape, and cruel/inhuman treatment of minorities.
Only idiotic Sinhala lawyer will request the courts for sanctions, and thank god there are no Sinhala-Buddhist judges in the USA. But the real target will be US citizens and resident like General Sarath Fonseka. US justice system will work and the US citizens cannot hide in Sri Lanka.. Of course there will be a fair trial.
Which part of it do you fellows don’t understand?
Diaspora will take a more aggressive, and functional role as explained above very soon and not just to useless petitions, vexatious litigation s, and actions.
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Olympian. / August 25, 2012
Not forgetting the amount of money wasted in the hope of bringing the commonwealth games to Hambantota ,that was another white elephant in the making last year . Big ideas but no results. All to do with the curse of the ancient gods of the theravada country.
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M J / August 26, 2012
There is plenty of law’s in USA could put Gotabaya Rajapaksa in jail, but no body is interest in doing that.
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gamini / August 26, 2012
MJ, precisely, as much as some of the Sinhalese acting as the Patriots are living on this ISSUE, there are the Tamil counterparts who sell the Tamil issue to hold position and make money under corrupt MR. So is it surprising that most are interested in position and money? America and India are no exception.
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American Lanka Lover / August 26, 2012
Yes the Terrorist Diaspora will continue the fight in different fora, and they will continue to lose the frivolous litigation they file in US courts just as surely as they lost at Nandikadal. Even if a Circuit Court of Appeal were to ever rule in their favor, the Supreme Court will never allow immunity principles to be watered down. Just like the UK will never invade the Ecuadorian Embassy in London to get Assange; the principal is just too sancrosanct. But better the terrorist and their legal eagles waste their money on frivolous litigation than on rebuilding their arms acquisition networks.
This stubborn refusal to admit defeat and the futility of the Ealam dream, and to make a deal for limited autonomy is in defiance of the official leader of the LTTE (KP) who has taken a more pragmatic approach. Ditto Karuna.
The World will come to realize, albeit belatedly, that while the TTD complains vociferously about lack of efforts towards reconciliation by GOSL, they themselves are not interested in peace at all but are really just grouping after the thumping they suffered in May, 2009. GOSL must remain ever vigilant for the launch of Ealam War 5.
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Pacha Epa / August 27, 2012
American Lanka-Lover:
Your English might be more acceptable and your arguments a little more subtle, but the thrust is the same: support of racism, corruption and a tone that that sounds suspiciously like it is modulated by those paying you!
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American Lanka Lover / August 28, 2012
PE:
I condemn, not support, corruption in all its myriad forms. But the reality is that it is part of the culture in South Asian politics. And here in the US elections are bought by the superpacs thanks to our Supreme court’s decision striking down as unconstitutional our bipartisan campaign finance reform (Mcain Feingold Act).
Surely you dont claim this culture of corruption is unique to Sri Lanka nor that it originated with the Rajapaksas. Look at transparency international’s corruption ratings by nation and year for Sri Lanka.
And I abhor racism and work to combat it; but I find no credible evidence to support the claim made by the TTD of intentional “genocide” directed at the Tamils by the “oppressor” or “occupier” Sinhalese. It is not nearly that simple in Sri Lanka. Of course tribalism is repugnant, but in Sri Lanka and India it is the cornerstone of political groupings.
And the LTTE certainly killed way more of the Tamil intelligentsia than the GOSL did. And used civilians as human shields in 2009. And refused to agree to GOSL’s proposals to establish no fire zones which, under international law, require consent of all belligerents. Ergo, there were no recognized no fire zones, contrary to public perception, because the LTTE refused to designate any areas as such. They used the civilian populace of the occupied areas as both human shields and cannon fodder, but their propaganda units are skilled at diverting discussion from LTTE responsibility for the deaths of so many innocents (including first and foremost the Tamils who suffered disproportionately, and continue to suffer disproportionately).
Gamini: Ealam War 5 wont affect California, but I do worry for a country with which I have become enthralled over the last 6 months. In 2011 I was as unconcerned by Sri Lanka as 99.9% of Americans, although I was somewhat more knowledgeable about the history than most here who know little more than ‘they had a war there didn’t they?”‘.
But to we foreigners who actually visit Serendib, Lanka is like malaria; once it gets in your blood you can never eradicate it. They say if you come back a second time it means you will become addicted: I did, and now I am.
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gamini / August 27, 2012
More American than Lanka Lover, inspite of your boasts of Victories at Nandikadal where some of the LTTE betrayed VP to make the staged Victory possible, to prop MR up and now they are breaking bread with MR, You all are basically frightened of an Ealam War 5? What Card Board Sandos you are supporting?
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Donald J Gnanakone / August 27, 2012
Reconciliation can only happen when there is accountability, Truth and Justice.
Most of the idiots confuse Peace with Reconciliation.
They confuse Non War for Peace.
Here is more litigation in the appeal’s court.
http://www.tamilnet.com/art.html?catid=13&artid=35494
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Dharmaraj / September 7, 2012
Gota is hell bent on the white-van & bullet law family power at all cost, because that the only way to avoid deportation and trial.
The two Yankee brothers have ruined it for him, now he also bloodstained, corrupt, in the thick of things.
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Dharmaraj / September 7, 2012
Gota is hell bent on the white-van & bullet law family power at all cost, because that the only way to avoid deportation and trial.
The two Yankee brothers have ruined it for wal percy, now he also bloodstained, corrupt, in the thick of things
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