l by P. Sivakumaran
(October 16, Colombo, Sri Lanka Guardian) In a potential precedent setting motion filed in the U.S. District Court of District of Columbia, Bruce Fein, attorney for three Tamil plaintiffs, requested Judge Colleen Kollar-Kotelly, to authorize issuing summons through latest electronic social networks and local papers to the defendant, Sri Lanka’s sitting President, Mahinda Rajapakse, forcing the defendant to answer war-crimes charges, paving the way for Court determination of civil claims of $30m, legal sources in Washington said. Arguing that Rajapakse is “hostis humani generis,” an enemy of all mankind, the motion provides legal precedence to establish that Rajapakse’s crimes fall under Universal Jurisdiction applicable under TVPA.
Rajapakse is the first Sri Lankan President in Sri Lankan history to be put on trial via a competent judicial body for war crimes and torture targeting Sri Lanka’s Tamil community. The concept of accountability for state-sponsored crimes against Tamils through the fair administration of justice is a novel notion in Sri Lanka’s legal culture, accustomed to justifying the massacre of civilians and murder of dissidents as self-evident necessities of its national security mandate,” TAG said on the filing.
Tamils Against Genocide (TAG), the US-based activist group which sponsored the case and has authority to advise the attorney on behalf of the plaintiffs, said, “this is a precedent setting phase forcing the court to determine if it agrees to allow service through social media including news papers on defendants who can duck traditional means of service under the veil of sovereignty.
“If the court agrees, then Rajpakse’s alleged crimes will undergo strict judicial scrutiny in US Courts. Channel-4 video, allegations in UN panel report, and other emerging evidence including those in “White flag” killings will likely be submitted to first determine if they will be legally admissible, and then to establish culpability of the defendant,” TAG’s spokesperson said.
A press release issued marking the filing of the motion, said on the alternate service, “bascially, it may mean]the President can be served via the Internet, Facebook and Twitter and email. The President can no longer claim he is unaware of the charges alleged against him.”
Recognizing that the court will not be willing to rule on the motion unless the Court is convinced that the court has personal jurisdiction over the defendant, the motion provides legal reasoning to establish that the forum has personal jurisdiction over Rajapakse. “The law treats the extrajudicial killings alleged in the complaint as universal wrongs against all of mankind that have been constructively perpetrated everywhere in the world, including in the District of Columbia,” the motion says at the beginning of the argument.
As Hostii Humani Generis (“Hostii”), TVPA violators are subject to the doctrine of universal jurisdiction. The Senate Judiciary Committee report on the TVPA explicitly states that “states have the option, under international law, to decide whether they will allow a private right of action in their courts for violations of human rights that take place abroad,” and, “according to the doctrine of universal jurisdiction, the courts of all nations have jurisdiction over ‘offenses of universal interest.’”
Fein, noting that the legal fallouts of the case will have foreign policy implications for the U.S, said, “we have filed our motion for alternate service of the TVPA Complaint and Summons on President Rajapaksa. There is a substantial chance United States District Judge Colleen Kollar-Kotelly will solicit the views of the United States Department of State as to whether the suit should move forward.
“Accordingly, our supporters should begin immediately to lobby the Department and especially Secretary Clinton against interposing any opposition to our TVPA suit resting on extrajudicial killings constituting war crimes and flouting core standards of civilization. Members of Congress should also be lobbied to intercede with the State Department in our favor,” Fein said.
“As the civil procedure in war crimes litigation progresses to the service of process stage by publication in a newspaper of general circulation, the filing and advance of the litigation is a watershed moment. Rajapakse is the first Sri Lankan President in Sri Lankan history to be put on trial via a competent judicial body for war crimes and torture targeting Sri Lanka’s Tamil community. The concept of accountability for state-sponsored crimes against Tamils through the fair administration of justice is a novel notion in Sri Lanka’s legal culture, accustomed to justifying the massacre of civilians and murder of dissidents as self-evident necessities of its national security mandate,” TAG said on the filing.