02 Mar FP Misdescribes TVPA Lawsuit Against Mahinda Rajapaksa
Like many readers, I never miss FP’s online “Morning Brief,” which provides links to numerous interesting international developments. It’s an incredibly useful and erudite feature — which is why I was so surprised to see the following headline this morning:
A U.S. court dismissed charges against the president of Sri Lanka for war crimes.
Um, no. The case did not involve war crimes charges against Rajapaksa; the court dismissed a civil lawsuit against Rajapaska under the Torture Victims Protection Act 1991 (TVPA) on the ground that the TVPA recognizes head of state immunity. That’s a pretty big difference — especially as international tribunals have never recognized head of state immunity for international crimes. (Domestic courts, of course, are a different story.)
I think you could easily fill a whole newly-created blog about headlines in the news paper that contain false representation of what a court/judge/academic actually says. As the distinguished officer Barbrady (wink) would say: Move along folks, nothing to see here.
I’d totally read that blog!
Response…
the result is so sad because the U.S. TVPA expressly applies to “[a]n individual who, under actual or apparent authority … of any foreign nation.” The legislature could hardly have been more clear!
Just read the opinion over at jurist and I really wonder why a statute that displaces common law is to be read in a manner that is consistent with the common law rule it displaces. Is it not possible that the precise goal of the statute was to reverse the common law approach? After all, the jurisprudence on the Federal Arbitration Act and Labor Arbitration is pretty categoric in saying those statutes reverse the common law presumption against the enforceability of pre-dispute arbitration agreements. It seems that the judge here could have looked at the language of the statute and come out completely the other way – and maybe that would be good for purposes of addressing horrendous allegations that seem to fit squarely into the category of matters for which the law was passed. I think our courts have spent so much time these past years on finding formulaic ways to not give relief to victims of horrendous abuses by officials domestically and internationally that they seem to have lost sight of the need to vindicate rules against such despicable behavior. It’s callous and cowardly to do otherwise. I think also of the recent case of the wrongful death of people held… Read more »
Response…
Ben: you are on the right track — language so common at the international level such as the need for “accountability” and the “need to end impunity” is under attack in the ICJ and in U.S. courts by judges that seem to have their own agenda. All of this is seriously threatenting to “the rule of law” and to the pretense that judges merely follow the law. It is also sad to see law professors spearheading such attacks on accountability and the rule of law as if their preferred outcomes have anything to do with fundamental American values or the views of the Founders and Framers.