US "suggests" immunity to Rajapakse from suit
In a clear articulation of US State Department’s continuing support of Sri Lanka’s President Rajapakse, the US Justice Department, based on a directive from legal adviser Harold Koh, has suggested to the District Court of District of Columbia that Rajapakse has immunity from the suit filed by three Tamil plaintiffs for alleged complicity in war-crimes. The US State department asserts that "the Executive Branch retains the authority to refrain from making a similar immunity determination in future cases, considering, for example, international norms and the implications of the litigation for the Nation’s foreign relations," indicating that US would positively exercise its discretion in this case to intervene to prevent continuation of the suit.
Judge Kotelly gave the State Department till January 13, 2012 to indicate whether or not the State intends to file a Statement of Interest regarding issues identified in President Rajapakse’s motion, and if so, a date by which the State of Interest would be filed.
The response from the US Justice Department was filed Friday before the deadline.
While case law indicates no court has ever subjected a sitting head of state to suit once the Executive Branch has suggested the head of state immunity, there is continued tension between separation of powers doctrine and the "controlling" immunity determination by the State Department, legal sources in Washington said.
Spokesperson for Tamils Against Genocide (TAG) which sponsored the legal action said, "while we are disappointed at the intervention of the US State Department on behalf of Rajapakse, and we expect Judge Kotelly to agree with the suggestion and to dismiss the case, US’s action makes clear the following:
the Justice Department or the State Department did not consider the gravity of the charges against the sitting president, the war-crimes and crimes against humanity, which are international crimes where the International Criminal Court (ICC) has recently taken a stand to indict a sitting president, Sudan’s Al Bashir.
the State Department, by positively intervening, has expressed clearly its desire to help Colombo administration to weather war-crimes charges."
The political decision by the US appears to have closed the legal space available for bringing legal action against Rajapakse in US Courts until Rajapakse leaves his office.
Bruce Fein, Plaintiffs’ attorney, told TamilNet, State Department’s action is a clear violation of the separation of powers architected by the founding fathers in the US Constitution. He added that he will file a motion asking for 45 days to respond to the the suggestion of immunity.