During the pre-trial phase of a lawsuit accusing two Tamils and a Tamil charity for allegedly providing funds to the Liberation Tigers which is listed as a "Foreign Terrorist Organization (FTO)" by the US Department of State, and thereby aiding the Liberation Tigers in causing the death of several Sri Lanka civilians, U.S. District Judge Dennis Cavanaugh dismissed all but two charges, legal sources in Washington said. The suit was filed by relatives of 24 Sri Lankan civilians under a 1789 US statute Alien Tort Claim Act (ATCA) for the alleged killing by the LTTE. Legal sources in Washington said that the plaintiffs have a difficult legal effort in establishing the remaining two charges due to the higher thresholds of burden of proof demanded by the Court.
U.S. District Judge Dennis Cavanaugh threw out, in full, five of the seven counts (counts 2-5) in the complaint, and also dismissed a partial count (count 7).
The dismissed charges include aiding and abetting terrorism, negligence, reckless disregard and wrongful death and survivor claims. A summary of charges filed by the plaintiffs follows:
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Aiding and abetting, intentionally facilitating, and/or recklessly disregarding crimes against humanity in violation of international law;
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Aiding and abetting acts of terrorism, including specifically suicide bombings and other murderous attacks on innocent civilians intended to intimidate or coerce a civilian population, universally condemned as violations of the law of nations;
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Reckless disregard– to a known threat when they gave individual, private, or charitable funds…
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Negligence. Negligently and recklessly, directly and indirectly, failed to exercise reasonable care…
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Wrongful death against defendants;
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Survival action against the defendants; and
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Negligent and/or intentional infliction of emotional distress against plaintiffs.
Motion to Dismiss – Defendants A
Motion to Dismiss – Defendants B
Legal sources in Washington said that the plaintiff’s will have difficulty prevailing on count 1 and partial-count 7 due to the stricter thresholds Judge Cavanah has imposed on proving these charges.
On Count 1, while the Court agreed that crimes against humanity constitutes a norm of international law that is sufficiently definite, specific and obligatory," the Court adopted the standard established by the 9th circuit court that the defendant not only should have had "knowledge" of the attacks, but also must have been shown to have provided practical assistance for the "purpose" of facilitating the commission of crime.
The "purpose" threshold will most likely derail the plaintiffs of any likely hope of prevailing on charge one, unless the plaintiffs have irrefutable evidence that the defendants provided funds for the "purpose" of killing the plaintiffs’ relatives.
On the negligent portion of count 7, Court disagreed with the plaintiffs saying that the court did not recognize a duty by the defendants to prevent distribution of personal and charitable funds to designated terrorist organizations, The Court allowed only viable claim for intentional infliction of emotional distress.
Legal sources pointed out the "intentional" characterization of mens rea requirement is a higher threshold, and requires an equally higher burden of proof. In addition, the jury will have to agree to the presence of proximate cause, as another mandatory element to establish count-7.
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