United States Court of Appeals for the District of Columbia circuit in the opinion delivered this week on the appeal case against Sri Lanka’s President Rajpakse filed by three Tamil plaintiffs claiming civil damages on war-crimes charges ruled that "as a consequence of the [U.S.] State Department’s suggestion of immunity, the defendant [Rajapakse] is entitled to head of state immunity under the common law while he remains in office…," and affirmed the judgment of the district court dismissing the plaintiffs’ complaint. The plaintiffs’ attorney Bruce Fein told TamilNet that he will advise his clients and the sponsoring organization if they should consider filing a writ of certiorari keep the option open to move the case further forward to the Supreme Court.
The oral argument was heard by a three-judge court consisting of Judges Merrick Garland, Janice Brown, and Brett Kavanaugh.
The Court said that the Common Law relevant to the issue of immunity is established, and that “the diplomatic representative of the sovereign could request a ‘suggestion of immunity’ from the State Department,” and “[i]f the request was granted, the district court surrendered its jurisdiction.
The Court said that, therefore, it has no jurisdiction unless Congress intended the TVPA [Torture Victims Protection Act] to supersede the common law which governs the issue for the case at bar, as the court recognized that “The canon of construction that statutes should be interpreted consistently with the common law helps us interpret a statute that,” as here, “clearly covers a field formerly governed by the common law.
The court then considered "the language of the TVPA," to interpret if the Congress intended "torture," a crime accepted as a universal crime under international law, as a narrow exception to granting immunity to "an individual" including head of states.
The court said,"…plaintiffs contend supersedes the common law because it renders “an individual” liable for damages in a civil action, and a head of state is “an individual.” But as even the plaintiffs acknowledge, the term “an individual” cannot be read to cover every individual; plaintiffs agree that both diplomats and visiting heads of state retain immunity when they visit the United States.
Referring to an analogous statute the court concluded that "Congress did not intend that language to abrogate the preexisting common law of immunity applicable to executive officials," and "that the common law of head of state immunity survived enactment of the TVPA."
The spokesperson for the US-based activist group, Tamils Against Genocide [TAG] which seeks judicial redress for Tamil victims of war including sponsoring this case, commented: "Under contemporary norms of international human rights, head of States are not entitled to immunity for jus cogens norms violations. The appellate court’s interpretation of common law immunity doctrine is incompatible with the universally recognized prohibitions of torture and crimes against humanity. If the ruling stands, the State Department’s intervention to save Rajapakse symbolizes the human rights double standard at the center of the Obama administration’s foreign policy, preaching its inviolability abroad, while pardoning it at home, in America’s own courts," TAG said of the decision.
The complaint was filed first in 2011 at the District Court for this case 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.
After the intervention of the U.S. Justice Department which "suggested" Head of State immunity, the trial court dismissed the case. The plaintiffs appealed.