Ahimsa appeals US court decision in case against GR

Daughter of journalist Lasantha Wickrematunge, Ahimsa Wickrematunge, and her legal team filed a notice of appeal to the Ninth Circuit Court of Appeals yesterday, contesting the United States District Court’s decision to grant former Sri Lankan Secretary of Defence Gotabaya Rajapaksa immunity for suit related to the assassination of her father, prominent Sri Lankan journalist Lasantha Wickrematunge.

The United States District Court for the Central District of California held that it lacks the jurisdiction to consider Wickrematunge’s claims because, in the court’s view, Rajapaksa is entitled to common law foreign official immunity for the acts that are alleged—acts of torture, extrajudicial killing, and crimes against humanity. The court erroneously awarded Rajapaksa immunity even though Sri Lanka did not request it, and incorrectly found that Rajapaksa’s actions were committed within his official capacity as Sri Lanka’s Secretary of Defence, despite the fact that Lasantha’s assassination was neither authorised nor ratified by the Sri Lankan Government.

The District Court made no finding on the actual merits of the allegations against Rajapaksa, which include his alleged responsibility for the extrajudicial killing of Lasantha Wickrematunge and for the Sri Lankan Government’s campaign of violence against journalists during Sri Lanka’s civil war.

“In his final letter, my father reminded us that he had a ‘calling that is yet above high office, fame, lucre and security. It is the call of conscience.’ He shared that he hoped that his ‘assassination will be seen not as a defeat of freedom but an inspiration for those who survive to step up their efforts.’ I continue my fight in the courts in honour of my father’s call of conscience to ensure that Rajapaksa faces accountability for his role in the assassination of my father and to prevent any government official from evading justice by arguing that ordering assassinations of journalists could ever be part of their official duties,” said Ahimsa Wickrematunge.

“An end to impunity is precisely what the Torture Victim Protection Act was designed to provide in cases like this. There is no immunity when government officials act outside their authority to torture and murder journalists. Defendant Rajapaksa, a US citizen, can and must be held accountable in US courts,” said Natalie L. Reid of Debevoise & Plimpton LLP, counsel to Ahimsa.

On April 4 2019, CJA filed a complaint for torture, extrajudicial killing and crimes against humanity under the Torture Victim Protection Act and Alien Tort Statute against Gotabaya Rajapaksa, former Sri Lankan Secretary of Defence. At the time of filing, Rajapaksa was a US citizen, and CJA served him while he was visiting the United States. After CJA filed the case, Rajapaksa announced his candidacy in the Sri Lankan Presidential Election.

Rajapaksa sought to dismiss the case on a number of defences, including on grounds that he was afforded immunity for actions taken during his tenure as Secretary of Defence. Rajapaksa also sought to stay the case until after Sri Lanka’s Presidential Election, in which he is running as a candidate, based on the assumption that he would be entitled to head of state immunity should he be elected. 

CJA and Debevoise opposed both motions, arguing that the case should not be dismissed because the Sri Lankan Government has never requested immunity on Rajapaksa’s behalf, and that neither Lasantha’s assassination nor the targeted campaign against journalists are official acts. Moreover, justice is unavailable in Sri Lanka: statements from international experts Juan Mendez and Steven Ratner, and Sri Lankan constitutional scholar Suri Ratnapala show that human rights cases against the Rajapaksa administration, like this one, cannot proceed in Sri Lanka without facing judicial interference, delay, and danger to litigants and witnesses. Rajapaksa, a US citizen at the time of the events in question and when the case was filed, should be held accountable under US laws prohibiting torture and extrajudicial killing.