Published On: Thu, Nov 3rd, 2011

    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.

    Shavendra’s Motion to Dismiss

      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 not very persuasive. First, there are no binding Supreme Court cases cited by the defense on the issue of immunity. Secondly, 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.

       

  • Immunity in respect of serious crimes

      “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 constructed to provide “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.

      An important legal argument that favors the plaintiffs follow from this principle as summarized below by a legal source:

  • US has not ratified the Vienna Conventions though it accepts this as customary international law.

  • As such, within American domestic federal jurisdiction, war crimes and genocide have been implemented into domestic law, but a domestic statute controlling immunity of UN officials has not.

  • Invoking immunity, therefore, only has legal force arising from federal common law which in turn comes from customary international law.

  • Under customary international law, customary norm of the prohibition of war crimes is a jus cogens norm which defeats claims to immunity arising from a treaty.

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:

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..

06.12.10 Suspect Sri Lanka war-criminal in UN post under US..

26.11.10 UN post confers no absolute immunity from war crim..

21.11.10 New York media alerts UN posting of ‘War Criminal’..

30.10.10 Denmark Tamils take legal step to file war-crimes ..

15.09.10 European Court to review Jagath Dias case

27.08.10 Sri Lanka’s presumptive war-criminal to take UN jo..

01.08.10 Dias case filed in European Court, German Ambassad..

24.07.10 Tamils sue Germany for accepting alleged war crime..

21.07.10 Tamil Country Councils, TAG announce legal partner..

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External Links:

law:

BRZAK v. UNITED NATIONS 597 F.3d 107 (2010