Naomi Reice Buchwald, United States District Judge For The Southern District Of New York deferred to the Suggestion of Immunity issued by the U.S. State Department and dismissed the lawsuit brought by Vathsala Devi, the wife of Col. Ramesh.
The Plaintiff in the lawsuit asserts cause of action against President Rajapaksa for torture, cruel, inhuman or degrading treatment and international infliction of emotional distress in violation of the Alien Torts Claims Act, Torture Victim Protection Act, International Covenant on civil and political rights and the customary international law pertaining to armed conflict.
In her decision Judge Buchwald stated that President Rajapaksa enjoys head of state immunity. She added that head of state immunity is premised on comity as well as on the recognition that foreign leaders must be able to represent their nations abroad without the threat of being hailed into a foreign legal system. The Judge further stated that, “it is settled law that a determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such determination without reference to the underlying claims of a plaintiff.”
Judge Buchwald noted, however, that the plaintiff advanced several arguments to break new jurisprudential ground. The court acknowledged “the emergence of an international criminal regime that provides no shelter even to sitting heads of state is certainly a remarkable development”. Nonetheless, the Court said that it is not applicable to civil remedies.
A human rights scholar observed, “It would be paradoxical if a victim of human rights violation could exercise universal jurisdiction in a criminal context, but not obtain civil redress under the same basis of jurisdiction”.
“Civil proceedings are less intrusive in governmental functions and most importantly it empowers the victim herself,” said Plaintiff’s Attorney Visuvanathan Rudrakumaran. He acknowledges that the law is evolving with respect to liability for the head of state for violation of international crimes.
He said the Plaintiff will appeal to the U.S Court of Appeals for the Second Circuit where the case will be heard by a panel of three Judges. “The road to justice maybe long but we will not waiver from our determined journey” said Rudrakumaran.