Attorney for the three Tamil plaintiffs, who filed a civil case in the District Court of District of Columbia against Sri Lanka’s President Mahinda Rajapakse as responsible for extra-judicial killings of plaintiffs’ relatives, said Monday that he will be filing a motion in the Court that will (a) seek authority from the court to serve complaint by publication, (b) argue that sitting head of state has no immunity against war-crimes, and (c) the court has personal jurisdiction over Rajapakse. The case (Civil Action No. 11-235(CKK)) where the plaintiffs seek civil damages of $30m, was filed in January of this year. Rajapakse, Sri Lanka’s diplomatic mission in the U.S., and Sri Lanka Department of Justice refused to accept the service.
Currently Rajapakse is on an official visit to the United Nations in New York.
"If Rajapaksa strays from his official duties in his movements at the United Nations General Assembly, we can serve the Complaint and Summons on him by hand without encountering an immunity defense under the Vienna Convention or other international obligations," Fein told TamilNet.
As the next legal step to the pending Torture Victims Protection Act (TVPA) lawsuit against President Rajapaksa, plaintiffs’ attorney will be filing a motion on September 30, 2011 with the U.S. Court seeking authority to serve the Complaint and Summons by publication in a Sri Lankan newspaper of general circulation, by electronic means, by service on lawyers or lobbyists in Washington, D.C. who represent the Government of Sri Lanka, or otherwise.
The Court is likely to waive this alternate step for service to avoid unnecessary judicial procedural costs, especially when the Judge is reasonably certain that the defendant would have had access to the summons from the Hague filing, legal sources in Washington said.
Sri Lanka’s Ministry of Justice refused to accept service under the Hague Convention for International Service of Process on the ground of national security and head of state doctrine.
PDF: Text of complaint for case 1:11-cv-00235
The September motion will argue that the sitting head of state doctrine has no application to the universal torts of torture or extrajudicial killings which are constructively deemed wrongs against all of mankind that no government can authorize in any circumstances, and which inflict a global injury to civilization itself, the attorney said.
"The clear language of the TVPA creates no exception for a sitting head of state, who can even be prosecuted for war crimes, crimes against humanity, or genocide by the International Criminal Court. The sitting head of state of Sudan is currently under indictment for genocide. Even if international common law retains a sitting head of state exception for civil suits, Congress is empowered to override that immunity, which it did in the plain language of the TVPA," Fein told TamilNet.
The motion will further argue that personal jurisdiction exists over President Rajapaksa because of his contacts with the United States and the doctrine that a wrong against mankind occurs everywhere in the world, Fein added.
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