கருத்துகள்

court லேபிளுடன் இடுகைகளைக் காண்பிக்கிறது. அனைத்து இடுகைகளையும் காண்பி

சனி, 23 நவம்பர், 2013

Court in Jaffna dismisses SL military claim on Tamil memorial site at Theeruvil

[TamilNet, Wednesday, 20 November 2013, 22:18 GMT]
District Court of Point Pedro in Jaffna on Wednesday dismissed the claim by the Sri Lankan military that the land, which the Urban Council of Valveddith-thu’rai (VVT) had chosen to build a public park at Theeruvil was a property that should belong to the SL military. Legal sources in VVT said the civic body could now proceed with building the park which is situated at a key memorial site, where three significant monuments stood in remembrance of key LTTE leaders and commanders who sacrificed their lives under the occupation of Indian and Sri Lankan militaries and civilians massacred by the Indian military at VVT in 1989.

Valvai Monument for victims massacred by IPKF in VVT

Partly destroyed memorial site at Theeruvil, photographed in 2010. [TamilNet Library Photo]

Theeruvil monument photographed in early 90's [TamilNet Library Photo]

Following an ambush on Indian soldiers at VVT, a large contingent of Indian soldiers who were under the command of Brigadier Shankar Prasad declared curfew in VVT, entered the houses of civilians, raped more than 50 Tamil women, shot and killed more than 64 people, including children and women. The massacre, which went on for three days from 02 August 1989, is known as India’s Mylai massacre in the country of Eezham Tamils.

In remembrance of the victims of the massacre, the Valvai Massacre Monument was constructed in the form of a lotus flower at Theeruvil.

During the military intervention by India in 1987, Jaffna and Tricomalee regional commanders of the Liberation Tigers of Tamil Eelam (LTTE) Lt. Col. Kumarappa and Lt. Col. Pulenthiran together with 10 other Tiger members, arrested by the Sri Lanka Navy violating the agreement within the territorial waters of the Tamil homeland, chose to end their lives by taking cyanide in the hands of the ‘Indian Peace Keeping Force’ at Palaali air base when the IPKF withdrew its protection turning them over to Colombo.

A memorial monument, which came to be known as Theeruvil Monument was raised at the land where their remains were cremated.

In 1993, Col. Kiddu, a senior LTTE leader and former commander of Jaffna, Lt. Col. Kuddi Sree, Major Malaravan together with four captains and three, ended their lives by exploding their vessel when Col Kiddu, returning from London to Tamil Eelam was intercepted by the Indian navy in the international waters.

A monument was erected in remembrance of Col. Kiddu and his crew at Theeruvil.

The occupying SL military in 2010 demolished all the remains of these monuments.

The three monuments were situated in private lands, which have now been legally bought by the Urban Council.

The opening of Theeruvil Public Park in August 2013 by VVT Urban Council [Photo courtesy: Valvainet.com]

[Photo courtesy: Valvainet.com]

When the UC put up a board at the site in August this year and declared it open as VVT Theeruvil Public Park, the SL military had forcefully removed the board and claimed that it was establishing a military camp at the site.

On the instructions by SL presidential sibling and Defence Secretary Gotabhaya Rajapaksa, the notorious Terrorist Investigation Division (TID), filed a case under Section 66 of the Primary Court Procedure Act, a law applied when “breach of the peace is likely to arise in view of a dispute relating to the possession of a land.”

The Chairman of VVT Urban Council Mr C. Anantharajah, Deputy Chairman Mr N. Sathees and UC member and recently elected councillor of the Northern Provincial Council Mr M.K. Sivajilingam, were cited as respondents in case.

The remains of late Thiruvengadam Velupillai and late Parvathi Amma, the parents of LTTE leader V. Pirapaharan were placed near the destroyed monuments for the people to pay their last respects in 2010 and in 2011.

In its attempt to wipe out the memory of those perished in the massacres, detentions and most importantly the memory of key Tamil leaders and commanders, the occupying Sinhala military attempted to claim that the land where these monuments once stood was a ‘property owned by the LTTE’ and that the ‘property’ has now by default become that of the SL military.

In recent weeks, the SL military realising that it would lose the case, started to scoop the soil of the monumental site and use it to construct a military base near the VVT, destroying the park project of the VVT Urban Council.

It remains to be seen whether the civic and provincial council could protect such memorial sites in whatever ways possible without getting them further desecrated in the hands of the occupying military, civil sources in Vadamaraadchi commented.

Some of TamilNet Library photos witnessing the 2010 destruction of the Theeruvil memorial site follow:

புதன், 10 அக்டோபர், 2012

மாணவன் பலி: பத்மா சேசாத்ரி பள்ளி நிருவாகிகள் மீது பிணையில் வர முடியா வழக்கு

நீச்சல் குளத்தில் மூழ்கி மாணவன் பலி: பத்மா சேசாத்ரி பள்ளி நிருவாகிகள் மீது பிணையில் வர முடியாத வகையில் வழக்கு

மாலை மலர் Chennai புதன்கிழமை, அக்டோபர் 10, 2:22 PM IST

நீச்சல் குளத்தில் மூழ்கி மாணவன் பலி: பத்மா சேஷாத்ரி பள்ளி நிர்வாகிகள் மீது ஜாமீனில் வர முடியாத வகையில் வழக்கு

சென்னை, அக். 10-

சென்னை கே.கே.நகர் பத்மா சேஷாத்ரி பாலபவன் பள்ளி மாணவன் ரஞ்சன். பயிற்சியின்போது நீச்சல் குளத்தில் மூழ்கி பலியானான். இதுபற்றி கே.கே.நகர் போலீசார் வழக்குப்பதிவு செய்து, நீச்சல் பயிற்சியாளர், பள்ளி நிர்வாகி ஷீலா ராஜேந்திரன் உள்பட 5 பேரை கைது செய்தனர். இவர்கள் மீது ஜாமீனில் வெளிவரக்கூடிய 304(ஏ) பிரிவில் போலீசார் வழக்குப் பதிவு செய்து இருந்தனர்.

இந்நிலையில் இச்சம்பவம் தொடர்பாக வக்கீல்கள் கார்த்திக் ராஜா, புகழேந்தி மற்றும் வாராஹி ஆகியோர் ஐகோர்ட்டில் பொதுநல வழக்கு தொடர்ந்தனர். அதில், பத்மா சேஷாத்ரி பள்ளியில் உள்ள நீச்சல் குளத்தை உடனடியாக மூடவேண்டும். சம்பவத்துக்கு காரணமான பள்ளி நிர்வாகிகள் மீது ஜாமீனில் வெளிவர முடியாத 304(2) பிரிவின்கீழ் வழக்குப்பதிவு செய்ய வேண்டும். உயர்மட்ட கமிட்டி அமைத்து பள்ளி குழந்தைகளின் பாதுகாப்பு குறித்து ஆய்வு நடத்தி அறிக்கை தாக்கல் செய்ய வேண்டும் என்று குறிப்பிட்டு இருந்தனர்.

இந்த மனுவை தலைமை நீதிபதி இக்பால், நீதிபதி சிவஞானம் ஆகியோர் விசாரித்தனர். இன்று வழக்கு விசாரணையின்போது இன்ஸ்பெக்டர் மோகன்ராஜ் சார்பில் பதில் மனு தாக்கல் செய்யப்பட்டது.

அதில், இச்சம்பவம் தொடர்பாக 105 பேரிடம் விசாரணை நடத்தி உள்ளோம். பள்ளி துணை முதல்வர் ஷீலா ராஜேந்திரன் கைது செய்யப்பட்டு ஜாமீனில் வெளிவந்துள்ளார். நீச்சல் குளம் அமைப்பது தொடர்பாக தமிழ்நாடு விளையாட்டு மேம்பாட்டு ஆணையத்திடம் இருந்து தடையில்லா சான்றிதழ் பெறவில்லை. நீச்சல் குளத்தில் இருக்க வேண்டிய பாதுகாப்பு உபகரணங்கள் இல்லை.

நீச்சல் குளம் கட்டுவதற்கு சி.எம்.டி.ஏ.விடம் திட்ட அனுமதி பெறவில்லை. எனவே இந்த வழக்கில் சட்டப்பிரிகளில் மாற்றம் செய்ய கேட்டு சைதாப்பேட்டை கோர்ட்டில் மனு தாக்கல் செய்யப்பட்டுள்ளது. உள்நோக்கம் இல்லாமல் மரணம் விளைவித்தல் 304(2) என்ற பிரிவுக்கு மாற்ற முடிவு செய்துள்ளோம். எனவே பள்ளி நிர்வாகிகளுக்கு வழங்கப்பட்ட ஜாமீனை ரத்து செய்ய கேட்டு அவர்களுக்கு நோட்டீசு அனுப்பப்பட்டு உள்ளது.

இவ்வாறு அதில் கூறப்பட்டு உள்ளது.

இதையடுத்து வழக்கு விசாரணை தள்ளி வைக்கப்பட்டது.

திங்கள், 10 செப்டம்பர், 2012

Australia deals legal setback to US on extradition cases

[TamilNet, Sunday, 09 September 2012, 10:23 GMT]
In a legal blow to U.S. anti-terrorism laws used in extraditing Tamils caught in various sting operations by the U.S. law enforcement authorities, the 109-page opinion issued by the Federal Court of Australia's Judge J. North agreed with the Eezham Tamil defendant, Thulasitharan Santhirarajah, that in approving the extradition request, the Australian Attorney General (AG) fell into jurisdictional error on six different legal issues, the most precedent setting among them being that the offences charged by the U.S. were "political offenses," and therefore, that under section 22(3)(a) of the Extradition Act 1988, the Court was empowered to grant relief by prohibiting the "AG acting on her determination to surrender the defendant to the US."

Australia Federal Court Opinion: Santhirarajah v. AG

US-Australia Extradition Treaty

Washington-based legal scholars told TamilNet that the Australian ruling supported by detailed legal opinion has dealt an irrecoverable legal setback to future requests by the U.S. government to extradite Tamils accused of providing material support to organizations listed under the US State Department's list of "Foreign Terrorist Organizations (FTO)." The legal issue relating to "political offenses' is likely to reverberate in liberal judicial institutions across the world, including consideration of asylum applications of ex-LTTE members, legal sources added.

Australia's first female Attorney General, Nicola Roxon

The Melbourne Federal Court, in Santhirarajah's case, ruled that:

On the power to determine issue the AG failed to make the determination to extradite "as soon as is reasonably practicable" to do so
On the political offense exception issue the four offenses charged by the US are "either pure or relative" political offenses, and therefore, the AG violated the exception clause in approving the extradition
On the torture issue the AG erred in forming her satisfaction that the applicant will not be tortured. The court further added that the AG, in this issue, misunderstood that the obligation of the US was different from that of the Australia under Article 3 of the UN Convention against Torture (CAT).
On the best interest of the child issue the AG erred in asking the wrong question in the exercise of AG's general discretion under the Extradition treaty
On the procedural fairness issue the AG failed to inform the defendant of the negotiation of and proposal to accept assurances from the US to protect the defendant from the danger of torture and/or cruel, inhuman, or degrading treatment if returned to Sri Lanka.
On the 30-day assurance issue the AG erred in relying on the assurances given by the US that it would give Australia 30 days notice of the applicant's removal when the assurance did not address the dangers of torture and/or cruel, inhuman or degrading treatment o punishment faced by the defendant.

Tamils Against Genocide (TAG), a US-based activist organization seeking legal redress to Tamil war victims said, "Santhirarajah was arrested on 14 July 2008 on the US extradition request. He was remanded in custody (for more than 4 years) until the date of this judgment in 31 August 2012. Court also concluded that "in or about November 2009" was the time when it was reasonably practicable for the AG to make a determination whether to surrender Santhirarajah. Santhirarajah's liberty was curtailed extra-legally for a period of 2 years and 9 months," TAG noted.

"Further, Judge North has determined that Australia's AG, Nicola Roxon, has erred in six legal issues, and has ordered the Australian Government to pay Santhirarajah the [legal] cost of the proceeding. Urgently, Tamil Groups in Australia should work with Santhirarajah's attorneys, Ms. Mortimer and the solicitors Galbally & O'Bryan, to file for compensatory and punitive damages against the Australian Government in a tort action arising from illegal incarceration and deprivation of personal liberty," TAG said.

Legal sources who analyzed the Court documents, said that the case reveals the US Justice Department's policy on torture in relation to "terrror" defendants, and its sympathetic view of the regime in Colombo, despite the mounting evidence that the State might be complicit in genocide.

Responding to Santhirarajah's claim that he will be subjected to torture and reprisal if returned to Sri Lanka, the US Justice Department says, "This contention is speculative at best. There is no indication from Sri Lankan authorities to date of any interest in Santhirarajah. The hostilities between the Sri Lankan Government and the LTTE has ended, and a period of reconciliation has begun." US also said that US has safeguards and due process rights within deportation process to protect "aliens" subject to removal from the US.

As seen in the text of the ruling the Judge was unconvinced that there were sufficient safeguards in the extradition process to guarantee that the victim (Santhirarajah) will not be tortured, to comply with the provisions of International Covenant on Civil and Political Rights (ICCPR) (Art 6 and 7) and UN Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) (Art 3).

In an almost identical extradition request to the Singaporean Government, the judiciary there acceded to the US request, authorizing extradition of Mr Balraj Naidu, an alleged co-conspirator in the same Santhirarajah case, without asking many questions.

Chronology:

09.09.12 Australia deals legal setback to US on extradition..

01.09.12 Australian Court denies US extradition request

31.07.12 Australia's extradition of Tamil to US violates du..

24.10.10 Jury finds Singaporean guilty of material support ..

17.10.10 Broke no Singapore laws, defendant testifies in Ma..

11.10.10 Singaporean on trial in US on material support cha..

External Links:

CAT:		Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
ICCPR:		International Covenant on Civil and Political Rights

ஞாயிறு, 2 செப்டம்பர், 2012

Australian Court denies US extradition request

[TamilNet, Saturday, 01 September 2012, 02:36 GMT]
Melbourne Federal Court Judge, Justice Tony North, in a precedent setting verdict delivered Friday, denied extradition of an Eezham Tamil, Thulasitharan Santhirarajah, to the U.S., ruling that the US charges against Santhirarajah, were "political". The Court also ruled that Australia's Attorney General (AG) Nicola Roxon's decision to authorize extradition "denied Santhirarajah procedural fairness," and that the AG "erred in the way she accepted extradition would not result in Mr Santhirarajah's torture." Justice North appeared to have also heeded the warning of Mr Santhirarajah's wife, Priya, who is an Australian citizen and who said previously that "to consent to Thulasi's extradition will amount to the signing of his death warrant."

Justice North also held that the Extradition Act required a determination "as soon as is reasonably practicable" and the Attorney-General had signed the order two years too late. "As a result, the purported determination to surrender the defendant was made without power and is invalid."

The Judge also said that the Attorney General has "failed to properly consider the best interests of Varun (Santhirarajah's son)."

Ms Roxon signed the extradition order in February, and Santhirarajah's lawyer, Paul Galbally, filed a legal challenge arguing that the charges US has trumped up are more political than security-related.

Mr Santhirarajah welcomed the decision from his Victorian prison cell. "After spending four years in jail, he was very pleased to receive such positive news," his lawyer, Paul Galbally, said, according to The Australian.

"Using several provisions of anti-terrorism laws, U.S. prosecutors routinely stack charges against defendants residing in US-friendly countries to agree to extradition requests. Balaraj Naidu, a Singaporean citizen with similar charges in the same case was extradited from Singapore in 2010 and is currently serving jail term in the U.S. While Singapore readily admitted to Naidu's extradition, it is an enviable testimony to the fiercely independent Australian judge to have denied the U.S. request and to assert that the charges were politically motivated and that the defendant was denied due process," spokesperson for Tamils Against Genocide (TAG), a US-based activist group that seeks legal redress to war-affected Tamils told TamilNet.

"The Australian judiciary's dismissal of Santhirarajah's case, illustrates the widening divide between American extraterritorial terrorism prosecutions, and the legitimacy of America's War on Terror legal framework as interpreted by other sovereign jurisdictions, such as Australia. One ground of the Australian dismissal construed the terrorism charges as political, and therefore, an illegitimate legal basis to execute Santhirarajah's extradition. The judgement also illustrates a divide within Australia's body politic, between the judicial and political branch, and their dissimilar views on the presumptive validity of U.S.'s continuing War on Terror prosecutions of Tamils even after the genocidal military siege of Mu'l'livaaikkaal," TAG said.

Legal sources who have knowledge of the functioning of the U.S. Justice department speculated that the delay in Australia's AG in signing the extradition order two years late may be due to the Maryland prosecutor's internal agenda to spread-out the Terrorism cases to plan a propaganda time-line that allows maximum publicity to the law enforcement on "terror" related cases. The Naidu case was completed in 2011, and the pursuit of Santhirarajah may have begun after that. The publicity planning delay may have caused the derailment of the Santhirarajah's extradition, the sources added.

Santhirarajah was arrested in July 2008 for seeking to procure US weapons for the Liberation Tigers of Tamil Eelam two years earlier. Mr Santhirarajah, 38, is a Sri Lankan citizen who came to Australia on a short-term business visa and whose bid for permanent residency was rejected after his arrest. His wife Priya -- a Sri Lankan-born Australian citizen who was granted refugee status on the grounds she was a Tamil.

In a trial held in February 2006 in Maryland, four of the six alleged conspirators, Thirunavukarasu Varatharasa, 40, a Sri Lankan citizen; Haji Subandi, 73, and retired Indonesian Marine Corps General Erick Wotulo, 62, both citizens of Indonesia; and Haniffa Bin Osman, 59, a citizen of Singapore, pleaded guilty to their participation in the same conspiracy and were sentenced to 57 months, 37 months, 30 months, and 37 months in prison, respectively.

Balraj Naidu is the 5th co-conspirator the U.S. successfully extradited from Singapore and sentenced to 4.5 years in prison after a jury trial in Baltimore, Maryland in 2010.

Chronology:

01.09.12 Australian Court denies US extradition request

31.07.12 Australia's extradition of Tamil to US violates du..

24.10.10 Jury finds Singaporean guilty of material support ..

17.10.10 Broke no Singapore laws, defendant testifies in Ma..

11.10.10 Singaporean on trial in US on material support cha..

External Links:

AU:

Paul Galbally BA (Honours), LLB

வியாழன், 12 ஜூலை, 2012

TNPF files revision application against Jaffna Magistrate for prohibiting protest

[TamilNet, Wednesday, 11 July 2012, 17:56 GMT]
Tamil National People’s Front Tuesday filed a revision application in the Jaffna High Court seeking to revoke the order of the Jaffna Magistrate, who banned the demonstration, which was scheduled to be held on June 18, against land appropriation in the district.

The Jaffna Magistrate has given his reasons on June 26 for his order prohibiting the demonstration as that the demonstration was threatening the national security, creating dissension among communities, attempts to lead the people to the dark era again for political gain over the suffering of people and that it seeks once again to deny democratic rights of people and to introduce armed culture to come to power making the people as political pawns.

The revision application by the TNPF have countered the reasons given by the Magistrate as having no legal basis. “There are no legal grounds for such allegations. The orders issued by the Magistrate on June 18 and June 27 are based on unfounded allegations,” the TNPF said.

The plaintiff says that reasons given by the Magistrate in his order should be considered as irrelevant considerations.

The Magistrate Court has no jurisdiction to ban a demonstration or a get together according to the Criminal Procedure Code.

The Magistrate has pointed out that he has been legally entitled to prevent a tense situation. But he has taken such stand citing an event by the police without basis.

The Magistrate has failed to provide material facts for his stand that he expects a riot or a revolt at that time of making ban order, the TNPF has said in its revision application.

புதன், 25 ஏப்ரல், 2012

The court of international public opinion

[TamilNet, Tuesday, 24 April 2012, 21:59 GMT]
During the last stages of the war, the Tamil diaspora did organize demonstrations in a historic way, but they were confined to Tamils and did not have the support from the rest of the international public as was the case with anti Vietnam-war protests or even in the case of recent anti Iraq-war protests, writes TamilNet Economic and Geopolitical Analyst in the Asia Pacific, stressing on the importance of mobilizing solidarity and public opinion of the Fourth World, compared to lobbying within the Establishments and filing futile court cases. As the May 17 movement has recently stated, the ICG representatives had spent 5 hours on him asking him not to raise the issues of genocide, war crimes and independence, but could not succeed, whereas certain international forces could convince our nominated politicians over a cup of coffee, he writes on the dependability of grassroot.

Full text of the article by TamilNet Economic and Geopolitical Analyst in the Asia Pacific:

Understanding Geopolitics and History is for the purpose of planning the move forward. Having seen that globalised Establishments destroyed the LTTE through the CFA and are in the process of disarming the diaspora by the UNHRC resolution, we know what to expect from them at least in the near future. Still we cannot effectively move forward unless we define our role in that future movement.

The just concluded visit of Indian parliamentary delegation has demonstrated that collusion game for sharing of spoils of war continues along with the genocide of Tamils. Also Tamil Nadu has demonstrated what public opinion can achieve.

The ideology of Eelam liberation remains the same and common to the homeland Tamils and the diaspora though homeland Tamils earlier gave leadership and in the present difficult circumstances, diaspora may take that role of ideological leadership at least temporarily. However, being removed from the ground reality, the diaspora cannot play any leading role in organisation of resistance.

Though the homeland Tamils are somewhat subdued, it is history that oppressor never gives up oppression voluntarily and it is law of nature that resistance will develop in due course just like friction developing whenever there is motion.

Naturally the homeland Tamils will play the leading role, and they will also be in a better position to decide on the form of resistance to match the technology adopted by the enemy. The diaspora can only assist in whatever way possible.

* * *

The diaspora’s role is not diminished in anyway if we realize that the 60+ years of our struggle (both peaceful resistance and armed resistance) were crushed because of the lack of external support.

During the last stages of the war, diaspora did organize historic demonstrations, rallies etc. but they were confined to Tamils and did not have the support from the rest of the international public as was the case with anti Vietnam-war protests or even in the case of recent anti Iraq-war protests.

Since the end of the war, diaspora made many appeals to key western and Indian governments and also lobbied parliamentarians (both from the government side and opposition side) of the same governments.

Some in the diaspora even compromised on principles, refusing to call what is happening in the island of Sri Lanka as genocide. Some even repeated, parrot like, the IC/ICG position that both LTTE and GOSL are to be blamed, without even pointing out the very serious differences between the two.

The net result is the UNHRC Resolution, which is being celebrated as a ‘first step’ by some but exposed by others for what it is.

The other route taken by the diaspora is “court cases”, which are being undermined by the Western governments under various pretexts.

The SL commanders who committed the worst war crimes with impunity are exempted from trial due to immunity or allowed to escape back to the land of crimes where they can continue with further crimes with impunity.

It is the lawyers who gain the money of the diaspora by way of appearing for cases and appeals. It is difficult to find a court case where the political victims have been ordered reparations. The main point to remember is that law and order are there only to maintain the status quo and hence political victims will be denied justice under one pretext or another.

* * *

Apart from it being right or wrong, during the earlier days of the cold war it was possible to align with one power or another and some protection could have been gained but since then imperialism, through various transformations has evolved into the present stage of globally linked Establishments when it is no longer possible to align with any power and receive protection.

It is a homely example that we ourselves have aligned with the West and India but let down by all of them. It is a self-defeating tragedy that those who expose these powers also drift towards making some appeals to the very same powers.

The only option available is the appeal to the Court of International Public Opinion and that means developing solidarity with the other Nations without State and the oppressed peoples who together constitute the 99%. We need them and they need us although such solidarity is new, not only to us but also to others in the 99%.

* * *

Some of those accepting Fourth World Solidarity as conceptually relevant seem to feel that it would take a very long time to produce results and therefore other options for shorter-term results should be considered and acted upon. Such feeling is basically due to the lack of balanced objective thinking.

When you think of the ‘Long’ term only, you get divorced from the ground reality. Equally when you think of the ‘immediate’ or even ‘short’ term only, you can be easily pushed around by the enemy.

The right balance is to act on the immediate within the framework of a long-term ideology. Equally the right balance is required between the local demand and the wider global perspective.

Any action or even thought without the ‘space time context and balance’ will certainly lead astray. It is worthwhile remembering Einstein’s description of the Universe as a ‘four dimensional space-time continuum’ of ‘cause and effect related’ events.

It is again to be noted that the dimensions of space and time provide only a frame and are not determinants of change. The ‘cause and effect related’ implies that actions only lead to change. Knowledge and determination are only aids to action.

This Understanding is very relevant even to politics in this “globalised world”. When time is not a determinant, long-term or short-term is irrelevant and only right action that will lead to the desired end is required.

* * *

Solidarity whether it is that of the Fourth World of nations without state or whether it is that of the oppressed peoples and nations without state is a consequential need of the oppressor’s ‘globalisation’.

Solidarity is simply mutual support for mutual benefit. The 1% has realized this long ago and all their actions whether it is in the Iraq War, Afghanistan War or Eelam War are based on this principle of solidarity among the ‘globalised Establishments’.

So it is imperative that the 99% also develops solidarity among them. The globalised Establishments are all natural allies to one another of their kind. So all belonging to the 99% are also natural allies to one another among the 99%.

The author learnt of the concept of natural allies from George Armitage, who advanced the concept in formulating the alliance of the 1%.

It is never suggested anywhere that the 99% or the Fourth World or even the Eelam Nation solidifies itself as one entity before starting any struggle. Even if the 99% wants to, the 1% will not give that time. The Reality is that the 1% is oppressing 24 hours every day and the 99% needs to resist.

* * *

Before LTTE’s resistance and after the end of LTTE’s resistance as well as before the UNHRC resolution and after the UNHRC resolution, the GoSL is continuing with the genocide of Tamils with or without resistance.

It is unfortunate that sections of the diaspora do not want to even use the word genocide presumably at the behest of the ICG or its masters in the IC.

As Thirumurugan Gandhi of the May 17 movement in Tamil Nadu has recently stated that the visiting ICG representatives had spent 5 hours on him asking him not to raise the issues of genocide, war crimes and independence, but could not succeed, whereas certain international forces could convince our nominated politicians over a cup of coffee.

The genocide by the GoSL needs to be resisted and stopped and the homeland Tamils are resisting to the best of their ability. What the diaspora can do and should do is to develop solidarity among Tamils of the world, among the members of the Fourth World, and among the 99% in support of the resistance of the homeland Tamils, in whatever way they can.

It is not always ‘long-term politics’ to talk about Fourth World solidarity or even solidarity of the 99%.

* * *

Solidarity at any level could be developed for long term as well as short term and immediate issues.

Solidarity could be developed even around immediate issues like call for the withdrawal of the armed forces from the homeland or for stopping the structural genocide as well as around longer term and wider issues like right of self-determination of nations.

We should know with whom to call for solidarity around which issues. Obviously on the question of withdrawal of armed forces from the homeland, we cannot expect solidarity from the Establishments that have sent armed forces to Iraq or Afghanistan or from the Establishments that oppress Nations without State inside their arbitrary borders of countries under the cover of state-sovereignty, like India in Kashmir or China in Tibet or Russia in Chechnya.

Agent Imperialistic countries also will not support the right of self-determination of nations.

Thus we cannot expect any support from the former imperialist countries or the agent imperialist countries, which together constitute the Globalised Establishments and their club called the UN.

So what are the options if we accept the argument that solidarity with the Fourth World or solidarity with the 99% will take a long time?

The only but unrealistic option is to appeal to the same forces that oppress us. We have seen earlier that Time like Space is not a determinant but Right Action is.

* * *

The Right Action is the one that leads to the desired end by development of solidarity with the Fourth World and Solidarity with the 99%. It should always be remembered that solidarity can and should be developed for immediate, short term and long-term actions and hence the reasoning that solidarity with the oppressed Nations and oppressed peoples takes a long time in all circumstances is a lame excuse.

Another lame excuse is based on the assumption that development based on solidarity with the Fourth World or with the 99% is an ideological position and that ‘Pragmatism’ requires us to be ‘flexible on the ideological position’ and ‘compromise (with the enemy?) on issues’ to achieve something for the suffering people here and now.

The Ideological position is the vision of the destination and while everyone is ‘free’ to have his or her own vision of the destination and nobody needs to compromise with that vision except based on experience.

But since nothing happens without collective action, united action fronts need to be established on specific issues with all those who are sincere about those specific issues. Use of words like pragmatism, flexible, compromise, incremental etc., arises from or means to cause confusion.

* * *

Also it is important to note that ‘agreement on other issues’ is not necessary for united action on specific issues. For example, if we are thinking of a United Action Front for withdrawal of the occupying armed forces from the country of Eezham Tamils, it does not matter whether the participants agree on right of self-determination of nations so long as they are sincere on the question of withdrawing the occupying armed forces from the Tamil homeland.

Further, we need not look at ‘external’ support with suspicion. When we are struggling for national liberation, peoples and organisations interested in socialism will support us because they know that it is not possible to achieve socialism without completing national liberation.

Even spiritualists, who are aware that social and economic liberation is a prerequisite for ultimate liberation, will support national liberation.

It is in our interest to mobilise all forces that are likely to benefit from the completion of national liberation. Sinhalese genuinely fighting for socialism just like spiritualist Desmond Tutu should be considered as our ally.

* * *

There are others (probably due to ignorance or enemy propaganda) think that ‘solidarity’ is a campaign word of the socialists and say that national liberation cannot wait till socialism is achieved.

Little do they realize it is socialism that has to wait for the completion of national liberation and that solidarity is the campaign word among all those who understand the imperative need of collective action to achieve anything. As stated before, the Enemy has understood the importance of collective action but the oppressed peoples and oppressed Nations without State are still learning.

There are those (who due to impatience or selfishness) say that “solidarity with our natural allies cannot be achieved in our life time”.

The essence of cause-and-effect relationship (call it Karma to sound spiritual) is that we enjoy the fruits of labour of our previous generations and the fruits of our labour will be enjoyed by our future generations. This applies to all scientific inventions and social changes. Nobody ever grumbled of not going to heaven in his lifetime. Are we not going to the temples and churches from childhood to death without seeing any result?

* * *

It is not the intention to paint a fairy tale about solidarity among the oppressed Nations without State or even among the 99% because solidarity depends on collective action and neither the Nations without State nor the 99% have understood the importance of collective action, although experience pushes them towards that.

It is to be noted that the oppressor is taking all possible pre-emptive measures against collective action. For example the individual agreement in the work place instead of trade union action is a subtle measure to deny collective action.

In spite of all the loud noises, the human rights groups are also concerned with only individual human rights but they never speak of collective human rights like the right of self-determination of nations. It is a pity that many of us confine our campaigns to the ‘Internet’ and are reluctant even to think of demonstrations and rallies. If not for temples and churches, many of us will not meet one another except at workplaces and even that is being denied by ‘working from home’. It is not only desktop work but many goods are produced from homes. Even in sports, individual performances are given greater prominence. Honours are given to individuals and rarely to groups. It is a pity that even in communist parties, the leaders steal the credit.

So it is very important to understand the imperative need for collective action and solidarity is to facilitate that collective action. It might appear that we are very far from achieving these objectives. But as in Nature, it is a slow movement (and rarely seen) towards Social Change, till reaching the Critical Mass, and once the Critical Mass is reached, it is prairie fire.

* * *

It is important to realize that there is no other way in the cause-and-effect related events, and even any lobbying, applying pressure etc., with the enemy for temporary relief will be ignored if we stand alone. Hence we need to balance our action for immediate relief with our action for solidarity with our natural allies without giving lame excuses.

With the world economic crisis and the environmental crisis developing very fast, there is no other way other than for international public opinion to protect the international public. This is the overall way forward, but priorities will be determined by the developments of the ground reality.

India, being the Home of 1/3rd of the Nations without State in the world and also being the home of most antagonistic contradictions in the world, is likely to be the gateway to a New World.

So the priority for the Eezham Tamil nation is the alliance with the Tamil nation of Tamil Nadu, within the framework of the solidarity with Nations without State and the oppressed peoples.

Solidarity within smaller groups is not in conflict with solidarity within larger groups and vice versa so long as the objectives of solidarity are not in conflict. Equally solidarity for immediate objectives is not in conflict with solidarity for longer term objectives and vice versa so long as the objectives are not in conflict.

Withdrawal of the occupying armed forces from the Tamil homeland, stopping the genocide of Tamils, focus on Tamils sovereignty and the right of self-determination of nations, a new world order for the 99% are all complementary and not at all conflicting.

It is time to mobilise international public opinion for the removal of occupation forces out of the Tamil homeland.

Chronology:

24.04.12 The court of international public opinion

30.03.12 Post-UNHRC needs show of Fourth World solidarity

28.03.12 Norway plays with words on investigation, sees fai..

27.03.12 Eezham Tamil youth in Canada challenge connivance ..

26.03.12 LLRC centered resolution, an albatross around Tami..

25.03.12 Indian ‘cooperation’ stalls OHCHR acting on UNHRC ..

25.03.12 India placates Sri Lanka, claims it had ‘balanced’..

24.03.12 ICG acknowledges crisis but turns out cock-eyed on..

23.03.12 TNPF cautions ‘first step’ myth of UN resolution

22.03.12 Watered-down resolution passes in UNHRC, stops sho..

21.03.12 US-led World Bank loans to Rajapaksa, fortifies Co..

21.03.12 China card misleads Indian public

20.03.12 Centre for Peace and Reconciliation attacked in Ja..

19.03.12 Jayalalithaa blasts New Delhi supporting US-bailou..

19.03.12 India inclined to vote in favour of US resolution:..

19.03.12 Begin next stage of struggle by burning Sri Lankan..

18.03.12 Tamil civil society warned US officials on LLRC da..

18.03.12 ‘LLRC hollow, India must use pressure to secure ju..

16.03.12 Eezham Tamils demonstrate outside US Embassy in Lo..

15.03.12 US resolution offers bailout to Rajapaksa: Brian S..

14.03.12 New Delhi’s ‘historical’ Lanka relations outweigh ..

14.03.12 Onus focuses on India

13.03.12 Boyle warns Tamil diaspora against "Stall and Dela..

13.03.12 Grassroot Diaspora unites, upholds Tamil sovereign..

12.03.12 LLRC will only legitimise Sinhala occupation of Ta..

12.03.12 Win TV discussion sets Tamil perspective straight ..

11.03.12 Without international investigation accused will b..

11.03.12 We always requested international investigation: T..

11.03.12 LLRC-based resolution extremely disappointing: Gaj..

10.03.12 Tamil Nadu activists caution diaspora of the US-re..

09.03.12 US-resolution inadequate, India should seize oppor..

08.03.12 US-resolution binds Tamils to less than the 13th A..

07.03.12 World socialists reject both US-backed resolution ..

06.03.12 Thousands gather in Geneva denouncing deceptive de..

06.03.12 Tamil Nadu demands India to declare Rajapaksa guil..

06.03.12 Sumanthiran, Sritharan contradict reasoning Geneva..

05.03.12 West has to concede to Tamils its failure of ‘war ..

02.03.12 US demand on Sri Lanka is not enough: UNSG Panel o..

01.03.12 US, Sri Lanka squabble whether hang or slaughter E..

29.02.12 Enragement over US-India stand results in Sumanthi..

27.02.12 SL colonial governor coordinates anti-UN demonstra..

26.02.12 Peace academic denounces US-LLRC formula, urges al..

25.02.12 TNA plans boycotting UNHRC, requests people to rem..

25.02.12 US ‘tables’ Rajapaksa formula while pretending pre..

24.02.12 UNHRC sessions open on Monday amidst US–Sri Lanka ..

18.02.12 TNA tries to sell Indo-US pre-emption to Eezham Ta..

16.02.12 Sumanthiran comes forward to save Rajapaksa from i..

22.01.12 TNA should use its Tamil national mandate: Bishop ..

01.01.12 Majority ITAK members welcome civil society report..

13.12.11 TNA leadership faces admonition from civil society..

செவ்வாய், 21 பிப்ரவரி, 2012

Court to decide if US can save Rajapakse from war-crime charges

[TamilNet, Sunday, 19 February 2012, 02:38 GMT]
The United States Department of State, in its response to three Tamil plaintiffs' opposing arguments to the US's suggestion of immunity for Sri Lanka's President Mahinda Rajapakse from alleged war-crimes, said that the plaintiffs have asked the Court to "ignore the substantial and unanimous body of authority recognizing the controlling nature" of US's immunity determination, and that US's earlier submission adequately explained why the Court should recognize Rajapakse's immunity from the suit. Plaintiff's attorney said the US Government has failed to adequately address why the Court should pre-empt judicial review when under TVPA "an individual" has allegedly committed "universally repugnant" crimes, and is insolently insisting on the dispositiveness of US's determination on immunity. A ruling is expected from Judge Kotelly soon.

US Response to immunity objection

Response to State Department suggestion of Immunity

The Department of Justice reasserts the following three "brief points" in response to plaintiffs' opposition to immunity:

The US President's foreign relations power is constitutionally derived. Also US asserts that there is "no" indication that Congress intended to interfere with Executive authority on the immunity issue when it enacted TVPA;
U.S. contends that creation of statutory right of action does not automatically override "preexisting" immunity rules;and
In view of the above two principles, US says, the Court should join the "unanimous body of authority" recognizing US's "unreviewable" authority to make immunity determinations.

Spokesperson for Tamils Against Genocide (TAG), a US-based activist group that is sponsoring the case on behalf of three Tamil plaintiffs, said: "[t]he Executive Branch's purportedly unreviewable authority to make immunity determinations may not permissibly transgress the boundary between the Executive and the Judiciary, between suggesting and instructing a finding of immunity.

"Under the doctrine of separation of powers, the Court as an independent, neutral, and detached organ of America's constitutional democracy has the authority and capacity to arrive at its own immunity determinations, taking relevant facts such as the body of authority and Executive Branch's position into consideration.

"Special circumstances, such jus cogens norms violations may, in the interests of justice, warrant case-by-case deviations from immunity determinations suggested by the Executive or case law. Such independent judgments constitute the touchstone of American constitutionalism and its common law legal system," TAG spokesperson told TamilNet.

Opposing Memo from Patton Boggs Attorney

Judge Kotelly's Order

State Dept: Status Report on Immunity

State Dept: Suggestion of Immunity

Plaintiffs' Request to allow Opposition Motion

Case 1:11-cv-00235-CKK, Complaint

Judge Kotelly of District Court of District of Columbia will rule on the immunity issue, and if she deems there is sufficient merit in the both parties' arguments, Judge Kotelly might also rule if an oral argument is warranted and if the case should go forward.

The complaint for this case (alleges multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

Chronology:

19.02.12 Court to decide if US can save Rajapakse from war-..

05.02.12 Fein: TVPA's plain language interpretation negates..

20.01.12 Tamil plaintiffs oppose US Government's stand on R..

15.01.12 Executive overreach to provide immunity to Univers..

14.01.12 US "suggests" immunity to Rajapakse from suit

18.12.11 Rajapakse case, a legal pioneer, reaches historic ..

17.12.11 Rajapakse accepts Court summons, asks US to confer..

04.12.11 War crime litigations reach crucial phase in US co..

23.11.11 Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11 Rajapakse says will defy Court Order, Shavendra hi..

14.10.11 US Court authorizes use of TamilNet to serve Rajap..

01.10.11 Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11 Rajapakse has no immunity against war crimes prose..

06.08.11 US Court rules Rumsfeld can be sued for torture

27.06.11 Colombo fears judgment against Rajapakse in US Cou..

18.06.11 Hague summons reaches Rajapakse for US Court case

02.06.11 U.S. case: Rajapakse ducks service, Court order so..

09.02.11 DC Court to serve summons to Rajapakse

29.01.11 Ambassador, an honest man sent to lie for Sri Lank..

28.01.11 Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11 TAG to file civil case against Rajapakse in Texas ..

சனி, 21 ஜனவரி, 2012

Tamil plaintiffs oppose US Government's stand on Rajapakse immunity

[TamilNet, Friday, 20 January 2012, 01:41 GMT]
Judge Kotelly of District Court of District of Columbia, after considering the Tamil plaintiffs' motion asking the court to allow the plaintiffs to file a response to the United States suggestion of immunity to Sri Lanka's President Rajapakse, issued an order Tuesday granting permission to plaintiffs' attorney Bruce Fein to file the response on or before 3rd February, and to the United States Government to file a reply on a before 13th February. In the process, Judge Kotelly rejected defendant Rajapakse's opposition to plaintiffs request to be permitted to respond to the U.S. Government's suggestion of immunity.

Opposing Memo from Patton Boggs Attorney

Rajapaskse's attorney Mitchell Berger from Washington lobby firm, Patton Boggs, had earlier asked the Judge to deny any further action by the plaintiffs.

Berger cited US Government's suggestion of immunity, and said the United States had demonstrated that "the Executive Branch has the sole authority to determine the immunity from suit of sitting head of state" and that "[n]o Court has ever subjected a sitting head of state to suit once the Executive Branch has suggested the head of state's immunity."

Judge Kotelly's Order

Judge Kotelly rejected Berger's argument and set dates for the plaintiff to respond and the US Government to reply.

Plaintiffs' attorney Bruce Fein told TamilNet that while legislative history showed that Courts should give deference to the US Government's position, Congress still gave the Court the authority to make the final determination on the immunity question based on the facts of the case.

Mr. Fein added that the plaintiffs in this case are dealing with a sitting President who has amassed unprecedented power in a State where all dissent is suppressed, and a head of State who is alleged to have committed war-crimes and crimes against humanity. We hope these facts will influence Judge Kotelly's decision on the immunity question, Fein said.

Spokesperson for Tamils Against Genocide (TAG) which is sponsoring the case said, "while we are cognizant of the legal hurdle ahead of us, we are determined to record our opposition to the US Government's stand in suggesting immunity to someone alleged to have committed Universal crimes."

Chronology:

20.01.12 Tamil plaintiffs oppose US Government's stand on R..

15.01.12 Executive overreach to provide immunity to Univers..

14.01.12 US "suggests" immunity to Rajapakse from suit

18.12.11 Rajapakse case, a legal pioneer, reaches historic ..

17.12.11 Rajapakse accepts Court summons, asks US to confer..

04.12.11 War crime litigations reach crucial phase in US co..

23.11.11 Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11 Rajapakse says will defy Court Order, Shavendra hi..

14.10.11 US Court authorizes use of TamilNet to serve Rajap..

01.10.11 Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11 Rajapakse has no immunity against war crimes prose..

06.08.11 US Court rules Rumsfeld can be sued for torture

27.06.11 Colombo fears judgment against Rajapakse in US Cou..

18.06.11 Hague summons reaches Rajapakse for US Court case

02.06.11 U.S. case: Rajapakse ducks service, Court order so..

09.02.11 DC Court to serve summons to Rajapakse

29.01.11 Ambassador, an honest man sent to lie for Sri Lank..

28.01.11 Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11 TAG to file civil case against Rajapakse in Texas ..

திங்கள், 19 டிசம்பர், 2011

Sri Lanka Court admits as evidence confession taken under torture

[TamilNet, Sunday, 18 December 2011, 02:15 GMT]
Ruling on the 1999 case involving the attack on former President Chandrika Kumaratunge, Colombo high court admitted as valid evidence defendant's confession taken under alleged torture and issued a guilty verdict, legal sources in Colombo said. Velayutham Varatharajah, the main suspect in the case, told reporters that despite the presence of medical evidence that he was tortured during Police custody the High Court ruled the confession taken under duress as admissible evidence against him.

Varatharajah was allegedly tortured while under police custody during 1999 to 2001.

When Varadarajah was produced before the court in 2002, the judge ordered medical examinations, and the medical report contained overwhelming evidence of torture while he was under police custody, court records show.

"The judicial system in Sri Lanka violated Varadarajah's fundamental right to due process by keeping him in jail for nearly 12-years without any independence evidence of complicity in the crime, other than the confession taken under duress," legal sources close to the case said.

Legal sources further said that the Judges are pressured to issue a guilty verdict in politically charged cases such as his, and without any financial resources, he has no access to competent lawyers, other than those paid by the Human Rights organizations, to defend him,

Political sources in Colombo also said that many similar tamil youths are languishing in jails with substandard food and amenities, and with no accesses to legal representation.

Rajapakse case, a legal pioneer, reaches historic milestone, says Fein

[TamilNet, Sunday, 18 December 2011, 15:38 GMT]
An historic legal milestone was passed last Friday in the Torture Victims Protection Act (TVPA) lawsuit against Sri Lankan President Mahinda Rajapaksa for the extra-judicial killings of six Sri Lankan Tamils pending in the United States District Court for the District of Columbia, attorney for the plaintiffs, Bruce Fein said. A lawyer representing President Rajapaksa from the mega-law firm Patton Boggs LLC tacitly acknowledged receipt of the complaint and summons filed by the Plaintiffs in a motion to request the District Court to ask the U.S. Department of State for its views about the lawsuit. "The motion filed by President Rajapaksa formally brings him into the case, where for the first time he will be accountable to the rule of law, not the rule of the jungle," Fein added.

Excerpts from Fein's statement to TamilNet follow:

Bruce Fein, former US Associate Deputy Attorney General

"It can be anticipated that Patton Boggs will launch a massive lobbying effort at the State Department and in Congress in hopes of eliciting executive and legislative opposition to the TVPA lawsuit voiced to the United States District Court. The District Judge, however, has the final word irrespective of the President or Congress.

"We urgently need Tamil expatriates' generous support to launch an ambitious counter-campaign to recruit human rights groups, Nobel Peace Prize winners, former State Department officials who headed its human rights bureau, Members of Congress, and the media in favor of litigating the TVPA claims and against any legal immunity for President Rajapaksa.

"This case is a legal pioneer in several respects, and the legal research and analysis to litigate will be challenging. But if we can prevail on the immunity question, then countless other victims of President Rajapaksa’s signature human rights atrocities could file TVPA suits by piggy-backing on our legal victory. Among other things, President Rajapaksa is claiming act of state, sitting head of state, foreign sovereign immunity, political question, and personal jurisdiction defenses.

"We all know that the Lessons Learned and Reconciliation Commission report is a joke to enable President Rajapaksa to escape accountability for his endless human rights crimes. The pending TVPA lawsuit in the United States is our best hope to foil that ignominious escape," Fein told TamilNet.

Chronology:

18.12.11 Rajapakse case, a legal pioneer, reaches historic ..

17.12.11 Rajapakse accepts Court summons, asks US to confer..

04.12.11 War crime litigations reach crucial phase in US co..

23.11.11 Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11 Rajapakse says will defy Court Order, Shavendra hi..

14.10.11 US Court authorizes use of TamilNet to serve Rajap..

01.10.11 Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11 Rajapakse has no immunity against war crimes prose..

06.08.11 US Court rules Rumsfeld can be sued for torture

27.06.11 Colombo fears judgment against Rajapakse in US Cou..

18.06.11 Hague summons reaches Rajapakse for US Court case

02.06.11 U.S. case: Rajapakse ducks service, Court order so..

09.02.11 DC Court to serve summons to Rajapakse

29.01.11 Ambassador, an honest man sent to lie for Sri Lank..

28.01.11 Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11 TAG to file civil case against Rajapakse in Texas ..

External Links:

TAG:

Tamils Against Genocide

ஞாயிறு, 18 டிசம்பர், 2011

Rajapakse accepts Court summons, asks US to confer immunity

[TamilNet, Saturday, 17 December 2011, 19:35 GMT]
After avoiding service for more than 9 months, and despite statements by Colombo that Sri Lanka's President Mahinda Rajapakse is not answerable to US Courts, Rajapakse-appointed counsel from the lobby firm of Patton Boggs filed a motion with the District Court of District of Columbia for "enlargement of time to respond to the complaint" related to the legal action, 11-cv-00235, by three Tamil plaintiffs sponsored by Tamils Against Genocide (TAG), a US-based activist group. Legal observers expressed surprise at the filing, which, in addition to effecting waiver of service, also attempts to set the time window for response pleading tied to a discretionary act by Judge Kotelly on seeking view of the US State Department.

Rajapakse Motion seeking US intervention

Bruce Fein, attorney for the plaintiffs, said that the Court will likely reject the defendant's request, and set a time limit for the defendant to answer the complaint. The judge will independently decide if and when to seek views from the State Department, Fein said.

District Court Judge Colleen Kollar-Kotelly

Mitchell R. Berger, Partner at Patton Boggs

Legal observers said that despite earlier defiance, Rajapaksas may have relented after receiving legal advice from US indicating that failure to respond to the Court summons may result in a default judgement which will likely bar Rajapaksa from entering the US without paying the monetary award if granted by the court.

Spokesperson for Tamils Against Genocide (TAG), said: "This is a landmark development for the expatriate Tamils who are forcing Sri Lanka's President to a neutral court to answer charges of war-crimes. From absolute immunity enjoyed by Heads of State before worldwar II, evolving restricted immunity doctrines within the US's Federal Surveillance and Intelligence Act (FSIA) necessarily demand Rajapakse to present his exculpatory legal or factual arguement to avoid paying damages to the plaintiffs. Tamil lobby groups should work with sympathetic congresspersons to pressure the executive branch not to bail out the perpetrator of dastardly crimes against Tamil civilans," TAG added.

Plaintiff's attorney indicated that once the Court sets a timeline for submission he will review with plaintiffs the legally opportune time to include additional defendants to the case, including Gotabaya Rajapakse.

In addition to seeking the view of the US State Department, Rajapakse filing, even while the verdict on the acceptability of LLRC's work is being debated, disingenuously asserts that "United States Government has endorsed the work of the LLRC in addressing allegations concerning the actions of the combatants during the now-ended conflict" and uses the Assistant Secretary of State, Robert O' Blake's statements as defense to Rajapakse's alleged crimes and the purported US's policy approach to Sri Lanka, legal sources who have studied the Rajapakse motion said.

The future plan of legal defense of Rajapakse as briefly outlined in the Motion includes the following: (a) Court has no personal jurisdiction, (b) Heads of State are absolutely immune from suit in the United States, (c) Senior foreign government officials are entitled to foreign official immunity (d) plaintiffs’ claims raise non-justiciable political question, and (e) U.S. judicial evaluation of alleged sovereign acts within Sri Lanka would violate the Act of State doctrine.

Legal experts said that absent State Department intervention to save Rajapakse, the legal war will center around the restrictive immunity that may arise from the doctrines involving Head of State immunity. "That Patton Boggs would raise Act of State defense for the crimes against humanity alleged against Rajapakse, is unexpected," a legal expert said.

Text of complaint for case 1:11-cv-00235

The Complaint by the three Tamil plaintiffs alleges multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

Chronology:

17.12.11 Rajapakse accepts Court summons, asks US to confer..

04.12.11 War crime litigations reach crucial phase in US co..

23.11.11 Judge Kotelly to decide Rajapakse's legal fate in ..

19.10.11 Rajapakse says will defy Court Order, Shavendra hi..

14.10.11 US Court authorizes use of TamilNet to serve Rajap..

01.10.11 Rajapakse, an enemy of all mankind, filed U.S. Cou..

20.09.11 Rajapakse has no immunity against war crimes prose..

06.08.11 US Court rules Rumsfeld can be sued for torture

27.06.11 Colombo fears judgment against Rajapakse in US Cou..

18.06.11 Hague summons reaches Rajapakse for US Court case

02.06.11 U.S. case: Rajapakse ducks service, Court order so..

09.02.11 DC Court to serve summons to Rajapakse

29.01.11 Ambassador, an honest man sent to lie for Sri Lank..

28.01.11 Rajapaksa sued in US Courts over war-crimes, plain..

23.01.11 TAG to file civil case against Rajapakse in Texas ..

External Links:

LI:

Rajapakse files motion in war crimes case, effectively accepts summons served

செவ்வாய், 22 நவம்பர், 2011

Treaties provide absolute immunity against civil suits, Silva asserts

[TamilNet, Monday, 21 November 2011, 04:10 GMT]
Shavendra Silva, currently Sri Lanka’s Deputy Permanent Representative to the United Nations charged with torture and execution of Sri Lanka's Tamils by two plaintiffs, filed a motion in the District Court of Southern District of New York Friday seeking to dismiss the case against him. Defendant Silva's motion asserts that arguments by plaintiffs reveal "a misconception of nature of immunity," disregard terms of treaties that Silva claims provide "absolute immunity," and ignore federal case law. Judge Paul Oetken is expected to rule on the case based on the legal arguments presented and his judicial discretion, either to allow the case to go forward or to dismiss the case, with or without a hearing on the motion, legal sources in Washington said.

Motion in support of defendant's earlier Motion to Dismiss

The defendant points out in the motion that despite plaintiffs claims, there are no statutes or past precedents where immunity is stripped because the law suit relates to events that precede Silva's appointment. However, Plaintiffs have pointed out instances where immunity was denied based on the type of actions that occurred -- immunity was stripped from actions that judges deemed to be outside the scope of official diplomatic functions.

SDNY Judge Paul Oetken

Ali Beydoun, lead counsel for plaintiffs

Timothy G. Nelson, defendant's attorney

Shavendra Silva, alleged War Criminal holding UN post

Defendant Silva asserts that the Plaintiffs' claim that diplomatic immunity does not allow defendant to escape liability is a "fundamental misunderstanding," and argues pointing to English case law that "diplomatic immunity is not immunity from legal liability but immunity from law suit."

Further the defendant attaches to the motion three separate bulletins and court filings from the US Government which the defendant claims argue against the plaintiffs claim that grant of immunity will violate peremptory norms of international law.

The defendant sets forth the following arguments within the broad legal framework of absolute immunity:

Plaintiff's narrow construction of article 31 of Vienna convention has not been supported by case law, and that Second Circuit has established Diplomatic Immunity as absolute
United States Government has rejected the narrow construction of Article 31 by the plaintiffs that the article provides immunity only for official acts and for certain non-functional activity committed during the mission of the UN official. Defendants also assert that this position is consistent with International Court of Justice's ruling in the Tehran Hostage case.
Defendant claims that there is no jus cogens law exceptions to Diplomatic Immunity, citing the 2009 District court of District of Columbia Sabbithi case where the "same argument" was rejected by the court.

"While Silva's appointment is one clear example of attempts by Colombo to sanitize its post-war international image by portraying war criminals as diplomats, U.S. case law does not yet provide clear authority to legally recognize egregious-crime-exceptions to immunity for UN diplomats. However, TAG is convinced that, even if Shavendra prevails in his defense of immunity, the case will help move US jurisprudence forward towards a more narrowly tailored restrictive immunity doctrine that does not allow genocidaires to misuse the diplomatic posts to cleanse themselves of past crimes. Otherwise, by supplying immunity to diplomats such as Silva, US law will enable rogue states to turn the UN into a safe-haven for war-criminals," a spokesperson for Tamils Against Genocide (TAG), a US-based activist group, commented.

SDNY Complaint against Silva

Shavendra's Motion to Dismiss

Opposing motion to defendants motion to dismiss

The 102-page supporting Motion by the defendant contains 14 pages of legal argument supplemented by 88 pages of "Exhibits" consisting of reproduction of a law review article, a bulletin from the U.S. State Department, and two legal submissions by the U.S. Justice Department to the court for earlier cases that involved issues on Diplomatic Immunity.

Chronology:

21.11.11 Treaties provide absolute immunity against civil s..

14.11.11 "Charming Betsy" not so charming towards defendant..

09.11.11 Shavendra not entitled to immunity, argue attorney..

02.11.11 Shavendra raises immunity defense to escape tortur..

24.09.11 Torture case filed against Sri Lanka's ex-General ..

13.05.11 Kohona admits to sending "Killer SMS"

04.05.11 German Rights Group accuses Dias of war-crimes

24.02.11 Ban and Nambiar confer with generals and officials..

22.02.11 Diaspora legal activists speak to Palaka'ni on ICC..

21.02.11 Kohona could face court over Tamil Tiger deaths - ..

13.02.11 TAG, SCET's legal brief asserts ICC obligated to p..

08.12.10 Dual citizen Kohona falls under ICC jurisdiction o..