Commenting that the District of Columbia District Court’s dismissal of the Torture Victims Protection Act (TVPA) claims by three Tamil plaintiffs against Sri Lanka’s President Rajapaksa in his individual capacity for complicity in at least six extra-judicial killings was ill-reasoned, Bruce Fein, the attorney for the plaintiffs, added that the ruling is vulnerable to reversal upon an appeal to the United States Court of Appeals for the District of Columbia Circuit, and that the ruling expected in June on Mohamad v. Palestinian Authority, where the issue is centered around the meaning of the word "individual," may also overturn ruling on the Rajapakse case.
Summarizing his view on the Court’s ruling, Attorney Fein said, "the District Court ignored the plain language of the TVPA. It created an immunity for sitting heads of state—including Syria’s ruthless President Assad–which defeats a paramount purpose of the TVPA. It surrenders power to the executive to determine the outcome of cases or controversies in violation of separation of powers principles.
"And it tacitly maintains that a criminal prosecution against a sitting head of state for crimes in violation of international law is less an affront to national sovereignty than a civil suit for damages stemming from the identical criminal conduct.
"On the same date the District Court issued its dismissal decision, the United States Supreme Court heard oral argument on a TVPA case in which the Justices voiced great skepticism about departing from the plain meaning of the words “an individual” by imputing inventive unexpressed purposes of Congress. A Supreme Court ruling in that case is expected by June, and could undermine the District Court’s dismissal of the Rajapaksa suit," Fein said.
Mr Fein, when asked if he has recommended any following action to the plaintiffs, said that "we could file a notice of appeal to the Court of Appeals within 30 days," or instead, while allowing the Supreme Court to settle the issue on "the individual," we could consider filing the same charges on the individual(s) next in the line of command to Sri Lanka’s President Rajapaksa."
In the case, Mohamad v. Palestinian Authority, the oral arguments of which are being heard by the Supreme Court on whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons, the entire hour was consumed with Justices and lawyers intensely focused upon how many meanings could be seen in the single word “individual.” Legal observers commented that Justices remained unconvinced in attributing any alternate meaning to the word other its plain meaning.
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