Rajapakse banks on Blake in US war crimes case

WASHINGTON DC, DECEMBER 19:  Former US Ambassador to Sri Lanka and Assistant Secretary of State for South and Central Asian Affairs, Robert O Blake has not always been Colombo’s darling. He has earned the wrath of many an extremist pen-pusher in the government controlled press for his comments on human rights issues and his name is all over the leaked US Embassy cables which report accusations against the Sri Lankan government for human rights abuses including accusing presidential sibling and Defence Secretary Gotabaya of sanctioning extra judicial killings through Paramilitaries. One Wikileaks cable by former Ambassador Blake also states ex LTTE cadre Karuna, now a powerful minister in the Rajapakse Government ran a prostitution ring to service Sri Lankan soldiers.

Banking on Blake 

Be that as it may, in the motion and memorandum of points and authorities filed with the US District Court for the District of

Columbia in Civil Action No. 1:11-cv-235 (CKK) between KASIPPILLAI MANOHARAN, et al., Plaintiffs and PERCY MAHENDRA RAJAPAKSA, Defendant: President Rajapakse  relies inter alia on both the validity of the Lessons Learnt and Reconciliation Commission report (LLRC) and post May 2009 comments made by Robert O Blake.

The Motion and Memorandum and other documents in support of the motion were filed by Mitchell R. Berger of Patton Boggs LLP on behalf of Mr. Rajapakse on December 16, 2011.

Relying on the validity of LLRC

Relying heavily on the LLRC report Mr Rajapakse’s memorandum informs court that the Government of Sri Lanka established a Lessons Learnt and Reconciliation Commission (“LLRC”) with a mandate “to inquire and report” on events relating to the conflict “during the period between 21st February 2002 and 19th May 2009.

Claims US endorsed LLRC

Despite several hard-hitting statements by the US regarding accountability and human rights abuses, President Rajapakse claims in his memorandum filed through Patton Boggs that the United States government endorsed the work of the LLRC in addressing allegations concerning the actions of the combatants during the now-ended conflict.

The December 16, Memorandum goes on to claim that the Lessons Learned and Reconciliation Commission is playing an

important role in the reconciliation process, and that the Commission has heard testimony from Sri Lankans from all regions and ethnic backgrounds and has provided a forum for individuals to bring injustices to light and to express the personal tragedy and hardship created by the war.

Out of context

The memorandum also quotes various selected remarks of Robert O. Blake, Jr., U.S. Assistant Secretary of State for South and Central Asian Affairs most of them taken out of context.

For example it quotes Ambassador Blake’s remarks on May 4th 2011 in Colombo as follows: “The Lessons Learned and Reconciliation Commission is playing an important role in the reconciliation process. The Commission has heard testimony from Sri Lankans from all regions and ethnic backgrounds. It has provided a forum for individuals to bring injustices to light and to express the personal tragedy and hardship created by the war. We hope that the LLRC will also address accountability and will offer recommendations on how to redress wrongs committed by both sides during the conflict.”

Half the answer

But more particularly it partially quotes A/S Blake’s remarks on September 14, 2011 at a press conference at the American Centre in Colombo where he said “We’re not in the business of making threats to our friends. We’re in the business of trying to achieve progress. And so as I said earlier, we are very hopeful that the LLRC will be a credible process and a credible report, so we, like many others, look forward to the release of that report and hopefully the publication of that report in public.”

The above remarks were in fact made by A/S Blake in response to the following question by a member of the press in Colombo.

Q: “Recently I believe the U.S. gave [inaudible] said something to the effect that if the Sri Lankan government does not address human rights concerns, then the U.S. will get together with the international community to do something. Is that some sort of warning that the U.S. is giving to the Sri Lankan government? Are you setting a deadline, and if the Sri Lankan government fails to meet that deadline what is U.S. actually planning on doing?”

Blake’s full response

And while that was the question to which he responded, the Rajapakse motion does not give A/S Blake’s full answer which continues as follows:

“….And as I said earlier, we think there needs to be a full, credible and independent accounting and accountability for those individuals who may have violated international humanitarian law. So we’ll await the results of that study and we hope that will be a credible process. But as our own spokesman said, there will be pressure, if it’s not a credible process there will be

pressure for some sort of alternative mechanism. But we hope that doesn’t have to happen.”

More telling answers to media questions

Moreover earlier at this very same press conference Mr. Blake responded to another question as to whether the United States of America recognizes the LLRC as follows:

“I can’t really make a judgment on that. Obviously we’re going to wait and see what is in the report and then we will make a judgment about that. But as I said, we hope this will be a credible report and that it will take a look at many of the issues that have surfaced including those in the Panel of Experts report.”

Therefore it is disingenuous for President Rajapakse to claim that the US has ever endorsed the LLRC as a credible process it has merely adopted a wait and see attitude.

On US trade and investment in the region

Not surprisingly however and relevant to how the US may view the Political Question in cases such as these – A/S Blake at this same venue also said the United States was trying to do more in terms of promoting trade and investment in Sri Lanka.

“I think there’s been some progress, but I think we’d like to do more It’s the same way. I think it’s up to the Sri Lankan government as it is to any government to make sure that its own system is as open as possible, as transparent as possible, and that international investors are aware of opportunities and that they can compete fairly for those opportunities. So we’ll continue to support our business community. Again, I hope we can see more American trade and investment here.”

Will India influence the US on how to deal with Sri Lanka?

The US renewed focus on trade and investment in South Asia was underscored by remarks made just two weeks after this Press Conference on September 28, 2011 at the National Bureau of Asian Research in Washington DC by A/S Blake. In a talk titled “Looking Ahead: U.S.-India Strategic Relations and the Transpacific Century”  Mr.Blake reiterated the importance of India as a key influencer in determining the nature of US relations with India’s neighbours such as Sri Lanka.

India a pillar of stability says Blake

“As the centre of geopolitics moves toward Asia, India plays a critical role in U.S. strategy. The United States sees India as a pillar of stability and prosperity in the Indian Ocean and beyond. India has long been a maritime power in Asia in its own right and only India itself can charter a path to navigate the geopolitical currents unfolding before us.

“But we believe that India can leverage its democratic traditions, strong cultural influence, people-to-people ties, and booming economy, to help ensure the Asia of the 21st century is one defined by open markets, open societies, and open governments,” Blake said.

Sri Lanka will face more international pressure warns US ambassador Donahoe

Meanwhile across the pond in Geneva that same month, in a short but forceful speech, American Ambassador, Ms Eileen

Chamberlain Donahoe, at a meeting on September 12 convened by Sri Lanka on the side lines of the UN Human Rights Council sessions reportedly said, “Sri Lanka should have a full and credible investigation and should come up with reasonable reconciliation at the earliest. If you fail do so, Sri Lanka will face more international pressure through different methods”.

Why a US court cannot adjudicate this case according to President Rajapakse

In this backdrop President Rajapakse in his motion submits that a U.S. court cannot and should not adjudicate the plaintiffs’ claims, for at least five reasons.

First, Heads of State are absolutely immune from suit in the United States.

Second, senior foreign government officials—including Heads of Government, like President Rajapaksa—are entitled to foreign official immunity.

Third, plaintiffs’ claims raise non-justiciable political questions whose adjudication would interfere with the U.S.-Sri Lanka bilateral relationship.

Fourth, U.S. judicial evaluation of alleged sovereign acts within Sri Lanka would violate the Act of State doctrine and

Fifth, U.S. courts lack personal jurisdiction over President Rajapaksa in connection with claims arising from acts that allegedly occurred exclusively in Sri Lanka, and that involve no alleged conduct purposefully directed at the United States or Americans.

LLRC report condemned by rights groups 

Sri Lanka’s civil war was officially declared won by the Sri Lanka government on May 19, 2009 while the 400 page LLRC report was tabled in Parliament last week. (See LLRC-REPORT 2011)

The report which concluded the military did not deliberately target civilians during the final stages of the conflict as forces wiped out the Tamil Tiger rebel leadership has come under heavy fire from both Human Rights Watch and Amnesty International.

Human Rights Watch renewed calls for an independent review saying “Governments and UN bodies have held back for the past 18 months to allow the Sri Lankan commission to make progress on accountability.”

The New York based group’s Asia director Brad Adams said in a statement,“The commission’s failure to provide a roadmap for investigating and prosecuting wartime perpetrators shows the dire need for an independent, international commission,”

Meanwhile Amnesty International said that the commission acknowledged problems in Sri Lanka but ignored “serious evidence of war crimes, crimes against humanity and other violations of the laws of war.”

“There is a clear sign of the bias we had feared and already detected in the LLRC’s composition and conduct,” the London-based group’s Asia-Pacific director Sam Zarifi reportedly told AFP. (See article here)

Credible evidence of war crimes 

Earlier The UN Panel of Experts Report called for an independent investigation into allegations of War crimes saying there was credible evidence of war crimes and crimes against humanity committed by both sides in the final stages of the protracted civil war.

LLRC deeply flawed says UN report 

The UN panel of experts report which was officially forwarded to the Human Rights Council this September has already dismissed the LLRC mechanism as deeply flawed. The report states the LLRC process does not meet international standards for an effective accountability mechanism and, therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process.

Narrow escape

In fact Sri Lanka narrowly escaped censure at the UNHRC sessions in Geneva this year mainly because the international community was waiting on the LLRC Report and was providing the Rajapakse regime with another chance at making serious progress on accountability.

Also interesting to note is that one confidential US cable dated January 15, 2010 regarding accountability under the signature of the current US Ambassador to Sri Lanka Patricia Butenis stated it was not reasonable to expect a sitting government to self-indict itself.

“There are no examples we (Americans) know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power,” the cable released by wikileaks read.

Patton Boggs a behemoth

However it must be recognized that Patton Boggs is a behemoth that presides over Washington and will not hesitate to use its considerable influence peddling and lobbying powers its wonders to perform.

US issued Letter certifying immunity to Shavendra

The lobbying of State Department officials by Patton Boggs would

have commenced long before the motion was filed. However there is some speculation as to how the State department would react considering it has sat on its hands for nearly a year without issuing any kind of document of interest or immunity in the case against Rajapakse which was filed on January 28,2011, whereas it quickly issued a document certifying immunity based on international conventions in the War Crimes case filed against former Major General Shavendra Silva and currently Sri Lanka’s Deputy Permanent Representative to the UN in New York.

Shavendra Silva was served summons on September 23. It was reportedly accepted by a staffer in his Manhattan apartment and required Maj. Gen. de Silva to respond within 21 days — that is on or before October 14. He had earlier declared that he would ignore the immunity and face the charges in courts to prove his innocence. The charges include alleged torture, cruel, inhuman or degrading treatment, forced disappearances and crimes against humanity in terms of international, Sri Lankan and US laws.

There may be several reasons why President Rajapakse decided to pre-empt a motion filed by the Plaintiffs through their attorney Bruce Fein to declare that summons had been in effectively served on President Rajapakse. Earlier Mr. Rajapakse had rejected the service of summons including taking care to avoid plaintiff’s agents from physically serving summons on him during a visit to a Buddhist Temple in New York during the UN General Assembly also this September.

Another factor was perhaps President Rajapakse’s fear that Attorney Bruce Fein would add Presidential sibling and Defence

Secretary Gotabaya Rajapakse who is also a US citizen as a defendant to the case. Legal experts say Mr. Gotabaya Rajapakse will not have immunity from suit in any case whereas the matter of immunity is more straight forward with regard to President Rajapakse.

Whatever the outcome of the present motion in particular and the plaintiff’s case in general one thing is clear, these cases are of  great interest  to the ever evolving field of law and will not fail to excite vibrant legal debate. Having said that I’m also reminded of the words of Arundhati Roy who argued to a packed audience at Harvard University in April 2010 that it is as if the political elite of nations have seceded from their countries and formed a country of their own. True or otherwise there is indeed one truth that victims of state terror and survivors of war must come to terms with and that is that there is no such thing as a human rights foreign policy. As one American political pundit said, “We are in an age of competitive economic diplomacy where there are major concentrations of resources, so the less at stake commercially the more likely for the US to scold with more vigour.”

President Rajapakse’s motion

Be that as it may, in his motion filed by Patton Boggs lawyer Mitchell R. Berger, President Rajapakse moves the Court as follows:

“(A) To solicit the views of the United States government with respect to:

(i) President Rajapaksa’s entitlement to Head of State and foreign official immunity from suit;

(ii) the justiciability of plaintiffs’ claims under the political question doctrine; and

(iii) the applicability of the Act of State doctrine as a bar to adjudication of plaintiffs’ claims; and

B. In the interim, enlarge President Rajapaksa’s time to respond to the Complaint in this action until 20 days following the submission of the views of the United States.

“Following submission of the views of the United States, if the Court is not divested of jurisdiction, President Rajapaksa would move to dismiss the Complaint on the basis of his immunity from suit, the non-justiciability of plaintiffs’ claims under the political question doctrine, the Act of State doctrine, and the absence of U.S. personal jurisdiction over him, among other grounds.

“These issues are more fully explained in the accompanying Memorandum of Points and Authorities. Because this motion relates to President Rajapaksa’s entitlement to dispositive relief, in the form of dismissal based on Head of State and foreign official immunity among other grounds, undersigned counsel respectfully submits that there is no duty to confer pursuant to Local Rule 7(m). Undersigned counsel nonetheless contacted plaintiffs’ counsel, Mr. Bruce Fein, and sought plaintiffs’ position. Mr. Fein stated that plaintiffs take no position because of insufficient time to carefully consider the motion.

“A proposed order is submitted herewith.”

The Proposed Order by Patton Boggs  for US District Judge Colleen Kollar Kotelly also filed with the motion

“UPON CONSIDERATION of the motion of defendant Mahinda Rajapaksa, sued herein as Percy Mahendra Rajapaksa, to solicit the views of the United States government and for an enlargement of time to respond to the Complaint pending the submission of the views of the United States (Dkt. #__), and having been advised that the defendant currently serves as the President and Head of State of the Democratic Socialist Republic of Sri Lanka, and for other good cause, it is hereby

“ORDERED that the motion is granted; and it is further

“ORDERED that the Clerk of the Court shall serve a copy of this Order on the Honorable Harold H. Koh, The Legal Adviser, U.S. Department of State, 2201 C Street, N.W., Washington, D.C. 20520, and the Honorable Ronald C. Machen, Jr., United States Attorney for the District of Columbia, 555 4th Street, N.W., Washington, D.C. 20530, inviting the United States government to submit its views to the Court with respect to:

“(i) President Rajapaksa’s entitlement to Head of State and foreign official immunity in this action;

(ii) the justiciability of plaintiffs’ claims under the political question doctrine; and

(iii) the applicability of the Act of State doctrine as a bar to adjudication of plaintiffs’ claims; and it is further

“ORDERED that defendant’s time to respond to the Complaint in this action is enlarged until and including 20 days following the submission of the views of the United States.

Dated:______________________

__________________________________

COLLEEN KOLLAR-KOTELLY

United States District Judge”

Click here to access the Motion and Documents

 

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