John Bellinger, currently a senior partner in a large Washington Law firm, and formerly the legal adviser to the State Department in the Bush Administration, writes in a popular website that the Sri Lankan Government consulted him for advice on the war-crimes charges against Sri Lanka’s President Rajapakse in the D.C. District Court. The article also discloses that Sri Lanka requested the U.S. State Department to intervene in the Rajapakse war-crimes case more than nine-months ago, but the State Department delayed issuing the "Suggestion of immunity" until after Judge Kotelly formally requested the views of the U.S. Government. Judge Kotelly dismissed the case on the grounds of Head of State Immunity.
Bellinger was the predecessor to Harold Koh, the current legal advisor to the State Department. The Justice Department’s filing attached a letter from Harold Koh stating that the “Department of State recognizes and allows the immunity of President Rajapaksa as a sitting head of state from the jurisdiction of the United States District Court in this suit.”
Bellinger states in his article: "The Administration’s [Obama’s] Suggestion of Immunity for Rajapakse is consistent with longstanding State Department practice. However, the Administration’s delay in recognizing the immunity of a sitting head of state is unusual and may be another indication that Obama Administration officials want to appear to be more supportive of human rights litigation in U.S. courts against foreign government officials.
"This is the second time the Administration has delayed in asserting immunity for a sitting head of a foreign state. Last year, in an Alien Tort Statute case, the Administration waited for more than a year after receiving a formal request for immunity from the Rwandan government before filing a Suggestion of Immunity for Rwandan President Paul Kagame."
Bellinger cautions that the U.S.’s policy of delaying recognition of the immunities of foreign government officials in U.S. courts is likely to be viewed by other countries as inconsistent with international law norms and could have adverse reciprocal implications for U.S. government officials (including Obama Administration officials) who may be sued in foreign courts.
Rajapakse had appointed counsel, Mitchell Berger from the lobby firm of Patton Boggs to represent him in the D.C. Court.
The Complaint by the three Tamil plaintiffs alleged multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka’s President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.