United States Litigation

Since 2010, SPEAK has been analyzing and assessing the viability of legal claims in a US court involving human rights violations against members of the Tamil community. The Alien Tort Statute (ATS), which provides US federal district courts with jurisdiction to adjudicate cases, enables aliens to bring a civil action against foreign or domestic defendants for a tort only so long it was committed in violation of the law of nations or a treaty of the US. Credible witness accounts and evidence gathered by SPEAK show that Sri Lankan security forces intentionally and repeatedly shelled civilians, hospitals, and humanitarian operations during the last phase of the civil war. Indisputable evidence demonstrates that the Sri Lankan military forces have committed numerous indiscriminate and disproportionate attacks against civilians.

These include attacks on government-proclaimed “safe zones” and on clearly marked hospitals, schools, and food distribution centers. Further, the evidence supports allegations of a massive genocide campaign against the Tamil civilian population at the hands of security forces who were required, but failed, to protect the civilian population.

The above summary is based on evidence collected by SPEAK between September 2010 and April 2011. The evidence has been collected during SPEAK missions and assignments when members of SPEAK met with and interviewed Sri Lankan Tamil war refugees in Toronto (Canada), Vancouver (Canada), London (UK), Zurich (Switzerland) and Chennai (India).

In April 2011, SPEAK members traveled to Malaysia to interview refugees living there.

In February, the District Court for the Southern District of New York dismissed a lawsuit filed by SPEAK on behalf of Tamil victims against Shavendra Silva, a former Sri Lanka Army general, who is now Sri Lanka’s Deputy Permanent Representative to the United Nations in New York.  Last year, SPEAK turned to a U.S. court to obtain redress and establish the truth about the deaths of their relatives—an outcome that is impossible to achieve in Sri Lanka, nearly three years after the end of hostilities.

The SriLankan government refuses to acknowledge its responsibility for any violations of international law, even in the face of the United Nations’ conclusion that its wartime conduct “represented a grave assault on the entire regime of international law.” Although acknowledging “the gravity of the allegations made by the plaintiffs,” Judge J. Paul Oetken concluded that Silva’s diplomatic immunity precluded the court from looking at the merits of the plaintiffs’ claims. Judge Oetken’s decision suggests that individuals who deliberately trample upon humanitarian law during armed conflict can later take advantage of the U.N. system.  They can serve as diplomats and invoke its protections to evade accountability in every jurisdiction.  This result not only represents an egregious failure of the U.N. human rights system, it should shock the conscience of the international community.

In June, SPEAK has submitted an amicus curiae brief to the federal courts of New York advising the judges on the issue of prosecutorial immunity for Sri Lankan President Mahinda Rajapakse and the agents under his control. The plaintiff is asking for compensatory and punitive damages for torture, inhumane treatment and war crimes inflicted by the defendant in violation of the laws of the United States and International Law.

The issue in the case is whether it should be dismissed pursuant to the Suggestion of Immunity submitted by the US State Department. Pursuant to the request by the Sri Lankan President, the U.S. Department of State filed the Suggestion of Immunity stating, "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."

The Plaintiff argued that the Department of State lacks a legal basis, namely the law making authority, to file the Suggestion of Immunity and under emerging customary international law violations of jus cogens norms, namely torture, genocide, crimes against humanity & war crimes, pierced the veil of immunity.

The Department of State argues that for the last 160 years courts have accepted the State Department's determination of Head of State Immunity. The amicae brief filed by SPEAK argued the State Department's determination violates the separation of powers. The judge made an observation that the fact Congress has not amended the law to eliminate the State Department's role suggests that it acquiesces the State Department's position. The Judge reserved the decision.

In 2010, SPEAK also commenced a lobbying campaign directed at the US Department of State and Department of Justice. The effort is focused on deporting former Sri Lankan military generals presently in the US under federal laws designed to remove suspected war criminals within its borders.

SPEAK has also had meetings with Janice L. Jacobs, Assistant Secretary for Consular Affairs, Bureau of Consular Affairs, U.S. Department of State, urging her office to revoke the diplomatic visa issued by the United States to Mr. Shavendra Silva, the Deputy Permanent Representative to the United Nations for Sri Lanka.

Despite widespread allegations that Mr. Silva had a role in perpetrating violations of international humanitarian law during the civil war in Sri Lanka, the government of Sri Lanka appointed Mr. Silva to the U.N. post in August 2010. While U.N. diplomats generally receive protection pursuant to the United States’ agreement with the United Nations, the U.S. Department of State has demonstrated on prior occasions that it has the authority to revoke a visa when a diplomat’s presence in the United States is contrary to U.S. interests. In fact, the State Department is bound by U.S. immigration law to exclude aliens, including diplomats, when there is “reasonable ground[s] to believe” that the alien’s entry would have “adverse foreign policy consequences for the United States.”

In an August 2010 report, the U.S. State Department Office of War Crimes noted allegations that Mr. Silva received orders to execute combatants who were in the process of surrendering to the Sri Lankan forces. Such orders would violate international humanitarian law. By granting Mr. Silva a diplomatic visa, the United States sends a message that suspected war criminals are welcome to enjoy the privileges of residing in the United States.

In May, on the occasion of the third anniversary of the end of the conflict, Ali Beydoun and several other human rights “leaders” collaborated to give a presentation to members of United States Congress on war crimes in Sri Lanka. SPEAK, Amnesty International, International Crisis Group, Center for Justice and Accountability and Human Rights Watch have led a pressure campaign that has included screenings of two documentaries by Britain's Channel 4 showing Sri Lankan troops executing prisoners and sexually assaulting female guerrillas. Congressman Michael Grimm (R-NY), told an audience of members of Congress and the Executive Branch that Sri Lanka can choose to "continue to turn inward, to rely on China and India as allies . . . They can make amends with the Western world, with India, with all of those that believe that we need to devolve power to the Tamil majority in the north and to bring justice to all those responsible for the most egregious war crimes," Grimm said.