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Vathsala Devi and Seetharam Sivam v. Shavendra Silva

February 8, 2012

VATHSALA DEVI AND SEETHARAM SIVAM,
PLAINTIFFS,
v.
SHAVENDRA SILVA, DEFENDANT.



The opinion of the court was delivered by: J. Paul Oetken, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs in this action are two Sri Lankan nationals who have filed suit on behalf of their deceased relatives, alleged to be victims of torture and wrongful killing by the Sri Lankan military. Defendant is the Deputy Permanent Representative of Sri Lanka to the United Nations, who served as a commander in the Sri Lankan Army. Plaintiffs seek relief pursuant to the Alien Tort Claims Act and the Torture Victims Protection Act of 1991, as well as common law and international law.

Defendant has moved to dismiss this action on the ground of diplomatic immunity. For the reasons that follow, Defendant's motion is granted.

I.Background

A.Factual Allegations

The following factual allegations are drawn from the Complaint and are presumed true for purposes of this motion.

This lawsuit arises out of actions taken by the Sri Lankan military against the Tamil ethnic minority population in Sri Lanka during the years 2008 and 2009. As alleged in the Complaint, during this period the Sri Lankan government undertook a campaign of shelling unarmed civilians in Tamil-populated areas and engaging in torture and extra-judicial killing of members of the Tamil militant group, the Liberation Tigers of Tamil Eelam ("LTTE"). (Complaint, pp. 2-3.)

Defendant Shavendra Silva ("Silva") is a Sri Lankan Army general who served as the commander of the 58th Division of the Sri Lankan Army. He is also presently Sri Lanka's Deputy Permanent Representative to the United Nations. Plaintiffs allege that Silva "exercised command and control over, conspired with, ratified, and/or aided and abetted subordinates in the armed forces or persons or groups acting in coordination with the armed forces or under their control to commit acts of extra-judicial killing, crimes against humanity, and the other wrongful acts alleged herein, and to cover up these abuses." (Complaint ¶ 20.)

Plaintiff Vathsala Devi is the widow of Thurairajasingham Devi ("Devi"), who was a member of the LTTE in Sri Lanka. On or about May 18, 2009, Devi surrendered to the Sri Lankan army, per the Sri Lankan government's instructions, and was then extra-judicially executed. (Complaint ¶ 26.) Devi negotiated his surrender and reported to a predetermined location to surrender into the custody of Silva. However, members of the Sri Lankan Army, acting under the command and control of Silva, tortured and killed him. (Complaint ¶ 10.)

Plaintiff Seetharam Sivam is the son of Siththar Sivam ("Sivam"), who was a retired postmaster living in the Sri Lankan village of Suthanphirapuram until his death in February 2009. Sivam's home was shelled by the Sri Lankan military on February 3, 2009, and Sivam suffered a severe leg injury as a result. (Complaint ¶¶ 41, 42.) While Sivam was awaiting amputation of his leg at Puthukkudiyiruppu Hospital, the Sri Lankan Army shelled the hospital, killing Sivam and nine others. (Complaint ¶¶ 44, 45.) Plaintiffs allege that Defendant Silva was responsible for the treatment of civilians in the territory in which Sivam was wounded and killed, and that he was responsible for ensuring that Sri Lankan forces in that territory complied with international law governing the conduct of warfare. (Complaint ¶ 47.)

Plaintiffs assert four claims for relief against Silva: (1) torture; (2) cruel, inhuman, or degrading treatment; (3) intentional infliction of emotional distress; and (4) wrongful death/extra-judicial killing. The first and fourth claims are alleged to be actionable under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Victims Protection Act of 1991, Pub. L. 102-256, 106 Stat. 73 (March 12, 1992) (codified at 28 U.S.C. § 1350 note), "the common law of the United States," and "the laws of New York." (Complaint ¶¶ 54, 68.) The second claim is alleged to be actionable under "customary international law, the common law of the United States, and the laws of New York." (Complaint ¶ 57.) The third claim is alleged to be actionable under "the laws of New York and the United States." (Complaint ¶ 62.) Plaintiffs seek compensatory and punitive damages, injunctive relief, declaratory relief, and attorney's fees.

B.Procedural Background

The complaint was filed on September 23, 2011. On September 23 and September 27, 2011, Plaintiffs' agent purported to serve Silva with the summons and complaint at Silva's private residence in New York, New York. On October 14, 2011, counsel for Silva submitted a letter to the Court requesting the immediate dismissal of the lawsuit on the ground of diplomatic immunity pursuant to 22 U.S.C. ยง 254d. (Dkt. No. 5.) On October 19, 2011, counsel for Silva requested that Silva's October 14, 2011 letter be treated as a motion to dismiss should the Court require further briefing. (Dkt. No. 6.) On October 24, 2011, the Court ...


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