Beth Van Schaack.
Last Thursday, U.S. District Judge R. Gary Klausner dismissed Wickrematunge v. Rajapaksa. In a laconic four-page ruling, Klausner held that the court did not have subject matter jurisdiction over the suit against defendant Gotabaya (“Gota”) Rajapaksa, former Defense Minister of Sri Lanka, because he was entitled to common law foreign official immunity. The ruling dealt a blow to Plaintiff Ahimsa Wickrematunge’s dogged quest to seek justice following the assassination of her late father, Sri Lankan journalist Lasantha Wickrematunge.
As has been discussed at length on Just Security (here, here, here, and here), Gota has consistently escaped accountability for his actions. In his capacity as Defense Minister, it has been alleged that he oversaw brutal human rights violations and crimes against humanity against civilians, including journalists, during the country’s civil war.
In granting Gota’s motion to dismiss (and denying his motion to stay as moot), Judge Klausner departed from the reasoning employed by his colleague in the Central District of California, District Judge Walter, in a parallel case against Gota lodged by Tamil victims of Sri Lanka’s civil war. (More about that case—Samathanam—is available here and here). Judge Walter merely granted a stay pending the conclusion of the upcoming Sri Lankan presidential election and did not rule on whether Gota was entitled to any form of immunity.
By contrast, Judge Klausner in Wickrematunge reasoned that Gota deserved common law foreign official immunity because all alleged acts—torture, extrajudicial killing, and crimes against humanity—were committed by Gota in his “official capacity” as Sri Lanka’s Secretary of Defense. Judge Klausner so ruled even though there are no allegations that the Sri Lankan government authorized or ratified Lasantha’s assassination and even though Gota was actually a U.S. citizen at the time, which might undermine his ability to plead foreign official immunity. Indeed, one of the grounds cited by the Fourth Circuit in Yousef v. Samantar in denying the defendant immunity was his status as a permanent legal resident on the theory that he “has a binding tie to the United States and its court system.”
In this regard, Judge Klausner has invoked a species of conduct-based, or functional, immunity, which can be distinguished from the status-based immunity enjoyed by heads of state, heads of government, and (potentially) ministers of foreign affairs (the “troika” recognized by the International Court of Justice). This outcome follows the Supreme Court’s ruling in Samantar v. Yousef (2010), which held that individual immunities are governed by the common law rather than by the Foreign Sovereign Immunity Act (FSIA), which applies to the agencies and instrumentalities of a state and codifies a number of exceptions to state immunity, including for state sponsors of terrorism. In Samantar—also litigated by the Center for Justice & Accountability, which represents Ahimas Wickrematunge—the Court held that the FSIA applies only to legal entities and not to natural persons. (See our coverage here). The immunities of natural persons are thus governed by the common law, which remains in flux under U.S. and international law.
As part of this common law inquiry, the U.S. State Department is often invited to share its views on whether this form of conduct-based immunity is warranted. In the event that the Department files a “suggestion of immunity,” what weight such views should receive—absolute deference, as argued by the State Department, or considerable or substantial weight, as concluded by most courts—remains an open question.
Judge Klausner facilely dismissed the Wickrematungecase even though neither the Sri Lankan government nor the U.S. State Department formally requested or suggested immunity for Gota. Rather, Judge Klausner seemed to reason that foreign government officials who stand accused of committing international crimes, even if they are also U.S. citizens, should be presumptively granted immunity, so long as the U.S. State Department does not proactively issue a “suggestion of non-immunity” and the foreign government in question does not affirmatively articulate its support for the case going forward. Judge Klausner further reasoned that the case against Gota was distinguishable from cases like Hilao v. Estate of Marcos in which the defendant’s home country expressly disavowed the defendant’s conduct and even urged that the lawsuits proceed.
In addition, his reasoning contains a circularity that undermines Congress’s intent in passing the Torture Victim Protection Act (TVPA): the TVPA requires that the defendant acted under color of actual or apparent authority of a foreign government or under color of foreign law. Under Judge Klausner’s reasoning, however, satisfying this element would create an immediate defense to the suit.
Judge Klausner also failed to acknowledge jurisprudence from other courts indicating that jus cogensviolations—such as acts of summary execution and other human rights abuses—can never constitute “official” acts entitling the perpetrator to conduct-based immunity. For example, the 4th Circuit held in Yousef that foreign officials are not entitled to conduct-based immunity for violations of jus cogensnorms.
Plaintiff Ahimsa Wickrematunge announced in a statement late Monday night that she would appeal Judge Klausner’s ruling as a part of the larger “movement to end impunity for the killing of journalists in Sri Lanka.” Although the U.S. State Department did not weigh in at the district court level, which is not unusual, it may do so on appeal.
Wickrematunge will have to race against the clock to file her appeal: Sri Lankans head to the polls on November 16 and will decide then whether to elect Gota to the Presidency. As I discuss here, Gota has not heretofore been entitled to status-based immunity because he was not part of the so-called troika. He might, however, enjoy such immunity if elected next month.