On April 4, 2019, CJA filed a civil suit against Gotabaya Rajapaksa, Sri Lanka’s former Secretary of Defense and brother of former President Mahinda Rajapaksa, for his alleged involvement in the killing of journalist Lasantha Wickrematunge and the widespread and systematic targeting of journalists perceived to be critical of the Rajapaksa government. Read the complaint here.
During the Rajapaksa regime, journalists perceived to be critical of the war effort or the Rajapaksa government found themselves the targets of harassment and violence. Although the government denied playing a role in the abductions, assaults, and killings of journalists, many attacks were traced back to government security forces under Gotabaya’s Ministry of Defense. In particular, a unit within the Directorate of Military Intelligence was allegedly tasked with surveillance of and attacks on journalists, including the assassination of Lasantha Wickrematunge, the abduction and torture of Keith Noyahr, and the assault on Upali Tennakoon.
On January 8, 2009, Lasantha Wickrematunge was killed by masked assailants in the Sri Lankan capital of Colombo while driving to work. Lasantha was the editor of The Sunday Leader, famous for his political opinion columns and his investigations exposing government corruption and abuses committed during the war. His reporting drew criticism and threats from both President Mahinda Rajapaksa and Secretary of Defense Gotabaya Rajapaksa. In the weeks leading up to his death, Lasantha was so concerned that he would be assassinated that he wrote an editorial to be released in the event of his death, stating: “When finally I am killed, it will be the government that kills me.”
Stalled Investigation and Continued Impunity
In the immediate aftermath of Lasantha’s killing, the investigation into his death was marked by cover-ups in the police department and political interference. It was not until 2015, after a change in government, that the Sri Lankan police re-opened Lasantha’s case and revealed evidence linking his death to the Directorate of Military Intelligence.
Unfortunately, following the political crisis in Sri Lanka in October 2018, the police department’s investigation once again stalled. Over a decade has passed since Lasantha’s death, and still no charges have moved forward. Related investigations into other attacks against journalists have similarly stalled. This continued impunity prompted Lasantha’s daughter, Ahimsa Wickrematunge, to seek accountability for her father’s murder through a civil suit in the United States.
Rajapaksa was served with a court summons and copy of Ahimsa’s complaint while he was in California on April 7, 2019. The case was filed with support from Schonbrun, Seplow, Harris & Hoffman and the Mintz Group and is now being litigated alongside pro bono counsel from Debevoise & Plimpton LLP. Rajapaksa filed a motion to dismiss the claims on June 27, 2019. On July 15, 2019, CJA amended the complaint with additional details on attacks against journalists during the Rajapaksa regime, as well as adding a claim that Rajapaksa is liable for Lasantha’s torture in the lead-up to his extrajudicial killing. On August 16 and 27, 2019, Rajapaksa filed a renewed motion to dismiss and a motion to stay the case until the end of the Sri Lankan elections, where he is running for President. Rajapaska claims that the case should be dismissed because he has immunity for actions taken during his tenure as Secretary of Defense, and that any claims against him should be tried in Sri Lanka, not the United States. In addition, Rajapaksa claims that the case should be stayed 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, we argued that this case can only proceed in the US. Supporting declarations 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. We further argued that Rajapaksa, a U.S. citizen at the time of the events in question and throughout the pendency of this litigation, should be held accountable under U.S. laws prohibiting torture and extrajudicial killing. We opposed the motion to stay the proceedings based on Rajapaksa’s then-candidacy because it would have been speculative before the results of the election were in.
On October 21, 2019, the United States District Court for the Central District of California granted Gotabaya Rajapaksa’s motion to dismiss, finding that he was entitled to common law foreign official immunity for acts undertaken while serving as Secretary of Defense. The Court made no finding on the merits of the allegations against Rajapaksa. The Court concluded that Rajapaksa enjoyed immunity for the acts alleged even though Sri Lanka never requested immunity for him, nor did it ratify Lasantha’s assassination as an official act of state. CJA and Debevoise & Plimpton noticed an appeal of the District Court’s ruling on November 13, 2019 before the Ninth Circuit Court of Appeals.
On November 16, 2019, Gotabaya Rajapaksa was elected President of Sri Lanka. Rajapaksa is now entitled to head of state immunity. On December 20, 2019 CJA and Debevoise & Plimpton filed a motion to dismiss our appeal and vacate the underlying decision under the Munsingwear doctrine, which allows the lower court’s decision to be vacated when a case becomes moot in the middle of an appeal.
In our motion to dismiss and vacate we argued that if head of state immunity prevents the Court of Appeals from determining whether the District Court correctly decided that Rajapaksa is entitled to official act immunity, the Court of Appeals should vacate the District Court’s decision.
On February 27, 2020, the Ninth Circuit Court of Appeals granted our request to vacate the District Court’s ruling that Gotabaya Rajapaksa is entitled to common law foreign official immunity for acts committed while he was Secretary of Defense of Sri Lanka. The Ninth Circuit also granted our request to dismiss the case without prejudice, which clears the way for future litigation against Rajapaksa once he no longer enjoys immunity as a head of state.
“This ruling is a victory, and a message to Gotabaya Rajapaksa: His maneuvers to escape justice for his role in my father’s assassination continue to fail. He will not enjoy immunity forever, and his presidency can only delay, not prevent, accountability. Those of us who lost everything to his barbarism and bloodshed will never give up our fight for justice,” says Ahimsa Wickrematunge.