On February 29, Judge Kollar-Kotelly of the District Court for the District of Columbia dismissed a lawsuit brought under the Torture Victim Protection Act against President Rajapaksa of Sri Lanka, based on a Suggestion of Immunity filed on January 13 by the Obama Administration. The suit against Rajipaksa was filed in January 2011 by families of individuals allegedly killed during the civil war in Sri Lanka by Sri Lankan security services under his command responsibility. The Administration delayed filing its Suggestion of Immunity for more than nine months after receiving a request for immunity from the Sri Lankan Government. The Administration did not file until after Judge Kollar-Kotelly formally requested the views of the U.S. Government.
On January 13, 2012, the Department of Justice filed a Suggestion of Immunity asserting that “President Rajapaksa, as the sitting head of a foreign state, enjoys head of state immunity from the jurisdiction of U.S. courts in light of his current status. President Rajapaksa is entitled to immunity from the jurisdiction of this Court over this suit.” The Justice Department’s filing attached a letter from State Department Legal Adviser Harold Koh stating that the “Department of State recognizes and allows the immunity of President Rajapaksa as a sitting head of state from the jurisdiction of the United States District Court in this suit.” Judge Kollar-Kotelly held that the Suggestion of Immunity was binding on the Court.
The Administration’s Suggestion of Immunity for Rajapaksa is consistent with longstanding State Department practice. However, the Administration’s delay in recognizing the immunity of a sitting head of state is unusual and may be another indication that Obama Administration officials want to appear to be more supportive of human rights litigation in U.S. courts against foreign government officials.
This is the second time the Administration has delayed in asserting immunity for a sitting head of a foreign state. Last year, in an Alien Tort Statute case, the Administration waited for more than a year after receiving a formal request for immunity from the Rwandan government before filing a Suggestion of Immunity for Rwandan President Paul Kagame.
A policy of delaying recognition of the immunities of foreign government officials in U.S. courts is likely to be viewed by other countries as inconsistent with international law norms and could have adverse reciprocal implications for U.S. government officials (including Obama Administration officials) who may be sued in foreign courts (for example, for drone strikes). (Disclosure: The Sri Lankan government consulted me for advice in this matter.)