Shavendra Silva லேபிளுடன் இடுகைகளைக் காண்பிக்கிறது. அனைத்து இடுகைகளையும் காண்பி
Shavendra Silva லேபிளுடன் இடுகைகளைக் காண்பிக்கிறது. அனைத்து இடுகைகளையும் காண்பி

திங்கள், 19 மார்ச், 2012

Shavendra Silva declared "persona non grata" to British event

Shavendra Silva declared "persona non grata" to British event

[TamilNet, Sunday, 18 March 2012, 15:25 GMT]
The U.K.'s United Nation Mission in New York, decided not to invite Sri Lanka's Acting Permanent Representative to the United Nations, and ex-Major General in Sri Lankan Army (SLA), Shavendra Silva, to the Commonwealth Day reception, triggering a boycott from Sri Lanka's Permanent Representative to the UN, Dr Palitha Kohona, the current co-chair of the Commonwealth Caucus in New York, media in Colombo reported.

"Kohona apparently stayed away from the reception in consultation with Colombo, although Sri Lanka was this year's co-host of the event with Australia. According to reports from New York, it is understood that Sir Mark Lyall Grant, the UK Permanent Representative had not even consulted Australia on the decision not to invite Silva, who is at the centre of a political controversy at the UN over allegations of war crimes," Sunday Times reported in the latest edition.

Shavendra Silva was recently barred from participating in the deliberations of the Special Advisory Group (SAG) on peace keeping at the United Nations in New York by its chair Louise Frechette, a Canadian official, who said in a statement released at the UN Head Quarters, that she has advised Major General Shavendra Silva of Sri Lanka, that "his [Silva's] participation is not appropriate or helpful for the purposes of this Group [SAG]. He [Silva] will not participate in its deliberations."

But the UN secretariat had previously said it could do nothing about Silva's appointment as it was decided by member countries.

However, Professor Boyle, an expert in International Law, debunked this excuse in an earlier note to TamilNet, where he said, "Ban to appoint a presumptive war criminal to his Staff would be ultra vires his powers under the terms of article 101(3) and thus a violation of the Charter itself."

Shavendra Silva was recently rescued from a civil litigation in a New York court over war-crimes allegations by the diplomatic immunity accorded to UN "diplomats."

While acknowledging "the gravity of the allegations made by the plaintiffs," the Judge in the NY case concluded that Silva's diplomatic immunity precluded the court from looking at the merits of the plaintiffs' claims.

Chronology:

செவ்வாய், 21 பிப்ரவரி, 2012

Ban under fire for silence in Shavendra's UN appointment

Ban under fire for silence in Shavendra's UN appointment

[TamilNet, Saturday, 18 February 2012, 06:42 GMT]
While Navi Pillay, U.N.'s chief of human rights, advised U.N. Secretary General Ban Ki-moon earlier this month to seek the removal of a former Sri Lankan officer, Shavendra Silva, from a top peacekeeping advisory committee for alleged complicity in war-crimes, other rights groups blasted Ban for the silence on the controversial appointment. Philippe Bolopion, the U.N. representative for Human Rights Watch, said "[t]he responsibility for this puzzling appointment lays squarely with the Asia Group, but ultimately Ban Ki-moon established the panel and has to safeguard the reputation and credibility of the United Nations."

Martin Nesirky, Ban's chief spokesman, told reporters in a recent press briefing that Ban had no authority to reverse the appointment. "The selection of the members of the group is beyond the secretary general's purview," Nesirky said. "It's a matter for member states."

Professor Boyle, an expert in International Law, debunked this excuse in an earlier note to TamilNet, where he said, "Ban to appoint a presumptive war criminal to his Staff would be ultra vires his powers under the terms of article 101(3) and thus a violation of the Charter itself."

Human Rights Watch also countered Nesirky saying that, while the U.N.'s Asian governments are to blame for the appointment, the U.N. chief bears responsibility for fixing it.

Meanwhile, Inner City Press (ICP), which has been pressing the U.N. officials a clear statement on the status of Shavendra Silva's appointment for the last three weeks, obtained the following response from the U.S. Ambassador to the U.N., Susan Rice:
    "it's very concerning that someone with his [Shavendra Silva's] background would be selected to serve on this advisory group. We have conveyed this to member states, as well as to the Secretariat. There are a lot of efforts underway to address [this], probably best not to be discussed publicly."
The Foreign Policy (FP) Magazine pointed out that Silva commanded Sri Lanka's 58th division, which was directly involved in the final push to crush the LTTE. The panel does not specifically accuse Silva of engaging in atrocities, but it raises concern about the conduct of his troops, the FP said.

"It is thus a reasonable conclusion that there is, at the very least, the appearance of a case of international crimes to answer by Mr. Silva," FP said quoting Navi Pillay. "I would this strongly encourage you and senior colleagues to convey as a matter of urgency the organization's request to the Asian Group that this nomination be reviewed.... Should diplomatic engagement fail to bear fruit, further steps may need to be considered," Pillay said according to FP.

Palitha Kohona, Sri Lanka's Ambassador to the UN, who himself has war crimes charges filed against him in the International Criminal Court, covered for his deputy Silva, saying that his government has formed a committee to investigate allegations of human rights abuses detailed by a Sri Lankan lessons learned panel. "They will investigate every single allegation highlighted in the lessons learned report," said Kohona.

Chronology:


Related Articles:
08.02.12   Boyle: Appointing alleged war-criminals to UN posts, a viola..


External Links:
ICP: At UN Screening on Sri Lanka Murders, Kohona Tells Press to Ask Nambiar, Silva Says It Was 53rd Div - Lies Agreed On
ICP: Removing Silva as UN Adviser Addressed Feb 17, Pakistan PR Tells ICP; No Thanks to Ban Ki-moon
ICP: Bangladesh PR Tells ICP Silva "Not Acceptable" As UN Adviser, He, India & Pakistan Have Told Sri Lanka to "Fix It"
ICP: Amid Move to Switch From Criminal Silva, Ban Dismisses Predecessor Criticism
FP: Human rights advocates blast appointment of Sri Lankan commander to peacekeeping panel
ICP: Sri Lanka Got Saudi & Nepal to Stand Down, Silva to Now Cede to Kohona?
ICP: On Silva, Ambassadors Meet With UN Peacekeeping, Rice Says Concerned, Immunity Letter from USUN Surfaces
ICP: UN Says Ban Will Accept Alleged War Criminal As His Senior Adviser on Peacekeeping

ஞாயிறு, 29 ஜனவரி, 2012

Silva's proposed UN appointment elicits condemnation from Rights Groups

Silva's proposed UN appointment elicits condemnation from Rights Groups

[TamilNet, Saturday, 28 January 2012, 01:34 GMT]
New York-based Center for Constitutional Rights (CCR), California-based Center for Justice and Accountability (CJA), and Washington-based SPEAK, three premier Rights organizations which routinely use litigation in US Courts to resolve constitutional issues and to indict violators of rights, in a press release issued Thursday, condemned the proposed appointment of Shavendra Silva - an ex-General of the Sri Lanka Army who is being charged for war-crimes in US Court - to the Special Advisory Group to advise UN Secretary General Ban Ki Moon on Peacekeeping Operations.

Full text of the press release follows:

WASHINGTON, D.C., JAN. 27, 2012—Sri Lankan and international news outlets have reported that Shavendra Silva—a former military general in the Sri Lankan army who stands accused of war crimes and torture—has been selected for a position in U.N. Secretary-General Ban Ki-moon’s Special Advisory Group on Peacekeeping Operations.

This appointment is outrageous on many levels, according to a coalition of human rights groups including SPEAK Human Rights and Environmental Initiative, the UNROW Human Rights Impact Litigation Clinic at American University Washington College of Law, the Center for Justice and Accountability and the Center for Constitutional Rights. Silva played a central role in the Sri Lankan Army’s brutal military campaign against the Liberation Tigers of Tamil Eelam, which caused up to 40,000 civilian deaths and incalculable suffering, and violated fundamental principles of international humanitarian and human rights law. While the Sri Lankan government has proclaimed its success in carrying out a “humanitarian operation” during the armed conflict, a U.N. Panel of Experts appointed by Secretary General Ban Ki-Moon concluded that there are credible allegations that the Sri Lankan Army committed war crimes and crimes against humanity. The Panel of Experts report, submitted to the Secretary General on April 12, 2011, discusses the responsibility of the battalion that Silva commanded – the 58th Division of the Sri Lankan Army – in these allegations.

Silva’s appointment is also inappropriate in light of Sri Lanka’s record in U.N. peacekeeping operations. In 2007, Sri Lankan peacekeeping troops were deported from Haiti for allegedly committing crimes of sexual violence against Haitians, including underage girls.

An individual considered for the Special Advisory Group on Peacekeeping Operations should be capable of demonstrating leadership on peace, unblemished by the allegations made against Silva. If confirmed, Silva’s appointment to the Special Advisory Group would send an appalling message to the world: accused war criminals are legitimate authorities on peace. Therefore, it is imperative that the world call on Secretary-General Ban Ki-moon to reject or rescind any proposal to appoint Silva to the Special Advisory Group on Peacekeeping Operations in the interest of human rights, justice, and accountability.

Related Articles:
04.12.11   War crime litigations reach crucial phase in US courts
24.09.11   Torture case filed against Sri Lanka's ex-General Shavendra ..
06.12.10   Suspect Sri Lanka war-criminal in UN post under US media spo..


External Links:
ICP:Sri Lankan Alleged War Criminal Silva "Selected" as Ban Adviser on Peacekeeping?
CJA:Links to court filings including amicus briefs
LNW:Shavendra accused of sexually abusing Keheliya’s daughter
BBc:UN role for Sri Lanka ex-army General Shavendra Silva
Island:Top peacekeeping post for Shavendra
SPEAK:SPEAK Human Rights and Environmental Initiative
CCR-NY:Civil rights cases filed by Center for Constitutional Rights
CCR:Center for Constitutional Rights

செவ்வாய், 6 டிசம்பர், 2011

War crime litigations reach crucial phase in US courts


War crime litigations reach

crucial phase in US courts

[TamilNet, Sunday, 04 December 2011, 20:19 GMT]
Civil cases against Sri Lanka's President Mahinda Rajapakse and Shavendra Silva, an ex-army commander and currently Deputy Permanent Representative to the United Nations (UN) are waiting next round of decisions from the District Court of District of Columbia and District Court of Southern District of New York respectively, legal sources monitoring the progress of the cases said. The Rajapakse case awaits decision if the court can "force" Rajapakse to answer and engage with the Court. Shavendra case awaits decision from the SDNY judge on Silva's Motion to dismiss.

A third case in US court (SDNY) is against Mahinda Rajapakse, by attorney Rudrakumaran, and this case has not proceeded further than filing according to court records.

Attorney to the DC case, Bruce Fein, acting for three Tamil plaintiffs, in the case K. Manoharan et al. v. Mahinda Rajapakse, told TamilNet that he is optimistic about a favorable decision from Judge Kotelly, a judge with experience in Federal Intelligence and Surveillance Act (FISA). Fein added that if the Judge agrees that plaintiffs have satisfied the attempts at Service of Process having acted according to the latest order, Rajapakse will risk a default judgment against him if he continues to ignore court order. Fein said he is also contemplating to advice his clients to include, Sri Lanka's President's brother Gothabaya Rajapakse as a co-defendant in the DC case.

The process to add another defendant will not be a complicated procedure as we have surmounted the service of process hurdles and that since the additional defendant is a US citizen, the plaintiff and the court will have less complex mechanisms at hand to effect service of process, Fein said.

Ali Beydoun, lead counsel for the plaintiffs in Shavendra Silva case, said he is hopeful that the SDNY judge will likely not rule before scheduling a hearing for oral arguments from the attorneys. However, if the judge considers the legal argument in the motion from the defendant convincing on the issue of diplomatic immunity, the Judge may dismiss the case without a hearing.

Meanwhile, a spokesperson for Tamils Against Genocide (TAG), a US-based activist group, told TamilNet that two legal efforts are currently in progress, one involving post-surrender mass-rape of Tamil women, and the other involving complicity of Colombo in white-van abductions, torture, and incarceration. A legal document that will serve to press charges against a serving Sri Lanka diplomat in Europe for culpability in mass-rape is under preparation for filing with the prosecutor of the relevant EU state. The document is reported to include detailed graphics on where and how the crime occurred during March 2009 when the refugees were trickling out from the demarcated No Fire Zone and surrendered to the SLA, spokesperson added.

Chronology:


Related Articles:
21.11.11   Treaties provide absolute immunity against civil suits, Silv..


External Links:
TI: Sri Lankan government gave orders to commit war crimes, new evidence shows

செவ்வாய், 15 நவம்பர், 2011

"Charming Betsy" not so charming towards defendant Silva


"Charming Betsy" not so charming towards defendant Silva

[TamilNet, Monday, 14 November 2011, 00:05 GMT]
November 17th is D-day to the costly defense marshaled by alleged war-criminal ex-General Shavendra Silva. He must submit a reply to plaintiffs' brief filed on the 8th during the pre-trial motion phase of the civil case initiated by two Tamil plaintiffs in the Southern District Court of New York. Facing a strong legal response by the plaintiffs' attorney, Ali Beydoun, to establish personal jurisdiction for the court to hear the case, including arguments against claimed immunity, and alternate arguments based on an exception to immunity under international laws when egregious crimes are committed, defense attorneys have a formidable legal task ahead to convince the Judge to dismiss the case, informed legal sources said. Plaintiffs have used in the jurisdictional argument, "Charming Betsy," a case that provides binding precedent to the interpretation of international law.

Timothy G. Nelson, defendant's attorney
Timothy G. Nelson, defendant's attorney
Shavendra Silva, retired Army General
Shavendra Silva, retired Army General
"The irony of asserting diplomatic immunity in war crime-based civil litigation against Silva, a UN official, illuminates the flagrant disparity between the international community's (IC's) rhetorical pledges to uphold fundamental human rights, and the reality of the IC's reluctance to enforce these rights when the IC perceives that upholding these rights will contravene geopolitical considerations," a spokesperson for US-based activist group, Tamils Against Genocide (TAG) said.

"Notwithstanding the outcome, these advances in the stages of civil procedure against Silva in a US court is the first instance in post-independence Sri Lankan history of a Sri Lankan Army official being held accountable in front of a neutral magistrate for atrocity crimes targeting Tamils. As this case suggests, what appears increasingly certain two years into Mu'l'livaaikaal's aftermath, is that justice for Tamils will be enforced from outside Sri Lanka, and not within," the TAG spokesperson added.

In this case, which references domestic and international treaties and laws, the court and attorneys will be diligent in carefully interweaving but not mixing the following two issues in the legal analysis:
  • jus cogens law (accepted by the international community of states as a norm from which no derogation is permissible, and includes the prohibition of genocide, torture, crimes against humanity, and war crimes) applies to U.S. courts and presides over the hierarchy of legal norms in that space.
  • interpreting domestic and international laws within American jurisdiction requires recognition of the enacting history and of evolving legal standards. Past cases provide binding or persuasive precedent to some of the 'conflicts' in sources of law.
Within this broad legal framework, plaintiffs' brief outlines arguments that defendant Silva cannot claim absolute immunity, and therefore the court possesses jurisdiction, as follows:
    Ali Beydoun, lead counsel for plaintiffs
    Ali Beydoun, lead counsel for plaintiffs
    The court has jurisdiction because (a) Silva violates Jus Cogens (compelling law) norms, (b) diplomatic immunity does not attach to claims of torture and extrajudicial killing completed prior to becoming a diplomat, (c) international law denies Silva immunity in this case, (d) legislative history demonstrates Congress's desire to allow civil actions against diplomats, and the Court has an obligation to interpret treaties consistent with Congressional intent (e) the Court has an obligation to interpret federal statutes consistent with international law ("Charming Betsy"). Silva is not entitled to immunity under domestic US statutes flowing from treaties because (a) the Vienna Convention confers immunity only for official acts or unofficial acts during a diplomat‘s mission and (b) Section 11 of the Convention on Privileges and Immunities of the UN does not confer immunity, and (c) Section 15 of the UN Headquarters Agreement does not confer immunity. Plaintiffs further argue that international law precludes a defendant accused of torture and war crimes from being afforded immunity. Plaintiffs state that their claims are based on Silva's violations of universal human rights treaties whereas (a) Silva bases his arguments on instruments that occupy a lower status in the normative hierarchy of international law, and (b) Silva invokes the protection of principles that yield to Jus Cogens norms and do not immunize him.
In Murray v. Charming Betsy, 6 U.S. 64, 118 (1804), the Supreme Court of the United States, said that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Charming Betsy provides binding precedent on this case.
Shavendra Silva with Jegath Dias recalled to Colombo on fear of war crime prosecution
Shavendra Silva with Jegath Dias recalled to Colombo on fear of war crime prosecution
Plaintiffs in this case argue that the Court's determination of Defendant Silva's motion to dismiss must take into account not only the treaties and the bilateral agreement that Defendant Silva cites, but also the jus cogens norms, which have binding force upon all states and protect fundamental human rights. Jus cogens norms require defendant Silva to be held accountable for his crimes in Sri Lanka.

The case against Shavendra Silva was filed on behalf of two Tamil plaintiffs by Ali Beydoun, director at American University Washington College of Law’s UNROW Human Rights Impact Litigation Clinic and a Senior Partner at SPEAK Human Rights & Environmental Initiative.

The D-day is also nearing for the District Court of the District of Columbia to rule in early December on the service of process to Sri Lanka's President Mahinda Rajapakse, regarding whether Rajapakse should have legal representation to answer charges filed in the civil suit by three Tamil plaintiffs.

Chronology:
US: Alexander Murray v. The Schooner Charming Betsy
Justia: Murray V. The Charming Betsy, 6 U. S. 64 (1804)

வெள்ளி, 11 நவம்பர், 2011

Shavendra not entitled to immunity, argue attorneys for Tamil plaintiffs


Shavendra not entitled to immunity, argue attorneys for Tamil plaintiffs

[TamilNet, Wednesday, 09 November 2011, 11:56 GMT]
Attorneys for two Tamil plaintiffs Tuesday filed a formal response to Sri Lankan ex-Major General Shavendra Silva’s motion to dismiss the war crimes lawsuit against him in the Southern District of New York, and international human rights groups united to urge the United Nations to suspend the credentials of Silva, who is Sri Lanka’s Deputy Permanent Representative to the United Nations. Silva is facing allegations in federal court for war crimes including torture, extrajudicial killing and the intentional shelling of civilians during Sri Lanka’s armed conflict.

“The United Nations has a war criminal within its ranks. This is a moral and legal offense,” said Ali Beydoun, director at American University Washington College of Law’s UNROW Human Rights Impact Litigation Clinic and a Senior Partner at SPEAK Human Rights & Environmental Initiative. “As the largest international body protecting peace and justice, the United Nations has a duty to allow a full investigation into General Silva’s war crimes. Silva should not be allowed to manipulate diplomatic immunity to use it as a shield for his crimes.”

Beydoun is lead counsel in the pending lawsuit against Silva for the extrajudicial killing of a civilian in the Army’s bombing of a hospital and for the torture and extrajudicial killing of a person hors de combat in the final stages of Sri Lanka’s armed conflict.

Shavendra Silva, retired Army General
Shavendra Silva, retired Army General
Arguing that the Court must interpret US statutes in accordance with international law, which necessarily includes jus cogens norms, the attorneys cited, Murray v. Charming Betsy, 6 U.S. 64, 118, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains" and added that the Courts should interpret U.S. law, whenever possible, in a manner consistent with international obligations.

Plaintiffs attorneys argued that International law precludes application of immunity to a defendant accused of torture and war crimes raising the following legal points:
  • Plaintiffs Base Their Claims on Violations of Universal Human Rights Treaties
  • Defendant Silva Bases His Arguments on Instruments that Enjoy a Lower Status in the Normative Hierarchy of International Law
  • Defendant Silva Invokes the Protection of Principles that Yield to Jus Cogens Norms and Do Not Immunize Him
“Overwhelming evidence showing that the Government of Sri Lanka perpetrated war crimes and crimes against humanity compels the suspension of General Silva’s credentials,” ten human rights organizations including the European Center for Constitutional and Human Rights, Human Rights USA, World Organisation Against Torture (OMCT), Center for Constitutional Rights, TRIAL, the Yale Law School’s Allard K. Lowenstein International Human Rights Clinic, the Campaign Against Criminalising Communities and the Society for Threatened Peoples wrote in a joint letter addressed to Secretary-General Ban Ki-moon. “Permitting General Silva to retain his credentials would send a message to law-breaking governments around the world that the United Nations will not defend the cause of justice and that it will shelter war criminals and perpetrators of mass atrocities,” the letter to Ban Ki Moon further said, as noted by the attorneys in the Press release.

Instead of investigating the war crimes committed by the Sri Lankan Army, the Sri Lankan Government has been sheltering military officers with diplomatic positions. Sri Lanka has posted 22 former high-ranking military officials to diplomatic posts around the world. This has catalyzed international efforts for justice for Tamil victims in Sri Lanka. Litigation similar to the suit against General Silva has sprung up in domestic courts around the world, including Germany, Switzerland and Australia. A global movement for accountability for Sri Lanka’s war criminals is building, a press release issued by SPEAK and American University Washington College of Law UNROW Human Rights Impact Litigation Clinic said.

Chronology:

வியாழன், 10 நவம்பர், 2011

Shavendra not entitled to immunity, argue attorneys for Tamil plaintiffs

Shavendra not entitled to immunity, argue attorneys for Tamil plaintiffs

[TamilNet, Wednesday, 09 November 2011, 11:56 GMT]
Attorneys for two Tamil plaintiffs Tuesday filed a formal response to Sri Lankan ex-Major General Shavendra Silva’s motion to dismiss the war crimes lawsuit against him in the Southern District of New York, and international human rights groups united to urge the United Nations to suspend the credentials of Silva, who is Sri Lanka’s Deputy Permanent Representative to the United Nations. Silva is facing allegations in federal court for war crimes including torture, extrajudicial killing and the intentional shelling of civilians during Sri Lanka’s armed conflict.

“The United Nations has a war criminal within its ranks. This is a moral and legal offense,” said Ali Beydoun, director at American University Washington College of Law’s UNROW Human Rights Impact Litigation Clinic and a Senior Partner at SPEAK Human Rights & Environmental Initiative. “As the largest international body protecting peace and justice, the United Nations has a duty to allow a full investigation into General Silva’s war crimes. Silva should not be allowed to manipulate diplomatic immunity to use it as a shield for his crimes.”

Shavendra Silva, retired Army General
Shavendra Silva, retired Army General
Beydoun is lead counsel in the pending lawsuit against Silva for the extrajudicial killing of a civilian in the Army’s bombing of a hospital and for the torture and extrajudicial killing of a person hors de combat in the final stages of Sri Lanka’s armed conflict.

Arguing that the Court must interpret US statutes in accordance with international law, which necessarily includes jus cogens norms, the attorneys cited, Murray v. Charming Betsy, 6 U.S. 64, 118, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains" and that the Courts should interpret U.S. law, whenever possible, in a manner consistent with international obligations.

Plaintiffs attornes argued that International law precludes application of immunity to a defendant accused of torture and war crimes raising the following legal points:
  • Plaintiffs Base Their Claims on Violations of Universal Human Rights Treaties
  • Defendant Silva Bases His Arguments on Instruments that Enjoy a Lower Status in the Normative Hierarchy of International Law
  • Defendant Silva Invokes the Protection of Principles that Yield to Jus Cogens Norms and Do Not Immunize Him
“Overwhelming evidence showing that the Government of Sri Lanka perpetrated war crimes and crimes against humanity compels the suspension of General Silva’s credentials,” ten human rights organizations including the European Center for Constitutional and Human Rights, Human Rights USA, World Organisation Against Torture (OMCT), Center for Constitutional Rights, TRIAL, the Yale Law School’s Allard K. Lowenstein International Human Rights Clinic, the Campaign Against Criminalising Communities and the Society for Threatened Peoples wrote in a joint letter addressed to Secretary-General Ban Ki-moon. “Permitting General Silva to retain his credentials would send a message to law-breaking governments around the world that the United Nations will not defend the cause of justice and that it will shelter war criminals and perpetrators of mass atrocities,” the attorneys said in a press release.

Instead of investigating the war crimes committed by the Sri Lankan Army, the Sri Lankan Government has been sheltering military officers with diplomatic positions. Sri Lanka has posted 22 former high-ranking military officials to diplomatic posts around the world. This has catalyzed international efforts for justice for Tamil victims in Sri Lanka. Litigation similar to the suit against General Silva has sprung up in domestic courts around the world, including Germany, Switzerland and Australia. A global movement for accountability for Sri Lanka’s war criminals is building, a press release issued by SPEAK said.

Chronology:


வியாழன், 3 நவம்பர், 2011

Shavendra raises immunity defense to escape torture charges

Shavendra raises immunity defense to escape torture charges

[TamilNet, Wednesday, 02 November 2011, 01:57 GMT]
Sri Lanka's Acting Permanent Representative to the United Nations, and ex-Major General in Sri Lankan Army (SLA), Shavendra Silva, has invoked Article-31 of the Vienna Convention on Diplomatic Immunity as his defense to war-crimes charges leveled against him by two Tamil plaintiffs in the District Court of Southern District of New York (Case 11 Civ. 6645), court records show. With no declared formal intervention by the U.S. State Department, and despite earlier pronouncements that Silva will defend his actions in the Court of law, the ex-General appears to have thought it prudent to hide behind "absolute" immunity defense his counsel claims the General is legally entitled to.

Silva's counsel mentions in a letter to the Court that filing an official Motion to Dismiss will "dignify the alleged attempts at "service" on the Ambassador," and therefore, they were requesting their letter to be treated as a motion to dismiss, which the Court granted.

The Plaintiffs are expected to file a reply to the motion to dismiss by the 8th of November, and Defendant's reply, if any, to be filed before the 17th November.

Shavendra Silva, alleged War Criminal holding UN post
Shavendra Silva, alleged War Criminal holding UN post
The defense argues that pursuant to a UN Convention on Privileges and Immunities, and to an agreement UN and the US regarding the Head Quarters located in New York, Mr Silva has the same Immunities accorded to diplomats, and that Mr Silva is entitled to such immunity as defined by the Vienna Convention.

The defense also argues that such immunity is "absolute," and therefore, precludes any civil action from proceeding against a currently-serving diplomat, regardless of the nature of the alleged crimes.

The defense cites four previous cases in support of its immunity argument.

While the question of immunity is a difficult hurdle to overcome, the defense's argument is clearly less than persuasive. First, there are no binding Supreme Court cases cited by the defense on the issue of immunity. The second circuit case cited involves functional immunity, and can be distinguished from Shavendra case where the issue is one of crimes against humanity committed while the defendant was not a diplomat, and no functional immunity applies here, legal sources in Washington said.

Further, courts have said the purpose of the immunity "is not to benefit individuals but to ensure efficient performance of the functions of diplomatic missions." In Shavendra's case, the likely argument presented by the plaintiffs is, Colombo purportedly sought to exploit the immunity provision to sanitize an alleged war-criminal. Plaintiffs are likely to highlight Switzerland's warning to ex-General Jagath Dias on imminent war-crimes investigations, and Colombo recalling the General, as an appropriate example of Colombo's efforts to send alleged criminals as diplomats, legal sources added.

"Legal scholars have argued that diplomatic immunity, which supports personal inviolability, may not prevail when the defendant has committed international crimes. When establishing the hierarchy between norms granting immunity and norms protecting fundamental values such as human life, the immunity norms always lose. Further, diplomatic immunity is a functionality based principle based on "reciprocal compromise," and cannot be categorized as jus cogens, or compelling law. U.S. jurisprudence will inevitably move towards a position where sanitization of genocidaires, such as Shavendra Silva, is legally prevented by narrowly interpreting the doctrine of immunity," spokesperson for the US-based activist group, Tamils Against Genocide (TAG), said.

Ali Beydoun, lead counsel and director at American University's Human Rights Impact Litigation Clinic, filed the civil action against Mr Silva on behalf of Tamil plaintiffs Vathsala Devi and Seetharam Sivam.

Chronology:


Related Articles:
19.10.11   Rajapakse says will defy Court Order, Shavendra hires NY law..