The case of the day is Devi v. Rajapaksa (S.D.N.Y. 2012). The case arises out of the long and bloody civil war between the Sinhalese majority and the Tamil minority in Sri Lanka. The plaintiff, Vathsala Devi, is the widow of Thurairajasingham, also known as Colonel Ramesh. The defendant, Mahinda Rajapaksa, is the President of Sri Lanka. According to the complaint, after Devi and her children left Sri Lanka in 2008, she saw a video showing her husband in the custody of the Sri Lankan army, being interrogated. Although Sri Lankan army officials have claimed that the video is a fake, Devi claimed it was real and that it showed that her husband had surrendered and was in Sri Lankan custody at the end of the war. Devi alleges that the video “confirm[ed] that [her] husband was detained by the Sri Lankan military forces and was later killed by the armed forces while a prisoner of the government in breach of customary international law.” I question the plausibility of this allegation, since it seems that when the video ended, Colonel Ramesh was alive, and Devi does not seem to allege that the video shows him being tortured or mistreated (though she does allege that end of the video the interrogators were “threatening to attack” the Colonel with a baton, which in itself is a kind of mistreatment, I think).

In any event, Devi sued Rajapaksa in New York under the Alien Tort Statute, 28 U.S.C. § 1350, which provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

(N.B. I am currently working on an ATS case, so I won’t be offering any views or comments about the meaning of the statute here).

Devi sought to serve the summons and complaint on Rajapaksa twice. First, upon learning that he would attend a meeting at a Buddhist temple in Queens in September 2011, Devi made unspecified “arrangements to effect service at that time”, but Rajapaksa did not show up at the meeting. Second, upon learning that Rajapaksa was to attend a meeting in Australia in October 2011, Devi consulted with lawyers there about serving process but was unable to serve the documents due to the shortness of time. Devi did not seek to serve the summons and complaint under the Hague Service Convention’s central authority mechanism, claiming that resort to the Convention would be futile: in a similar case in the District of Columbia, the Sri Lankan Ministry of Justice (the country’s central authority) refused to serve documents on Rajapaksa, citing Article 13 of the Convention.

Devi moved for leave to serve process by publication. The court denied the motion on the grounds that Devi ought at least to try to serve Rajapaksa via the Convention first:

[W]e find it prudent to require that a formal effort to serve defendant be made in the first instance, thereby ensuring that all interested parties are provided notice of the suit. Thus, before we will consider alternative forms of service, plaintiff must utilize the provisions of the Hague Convention.

I believe the basic outcome of the case is correct, but I fear that the judge’s reasoning will lead Devi astray. It seems to me that because the claim against Rajapaksa is really a claim of command responsibility for his military subordinates’ violations of customary international law, Rajapaksa is being sued for quintessentially governmental functions, and thus is is arguably immune from suit under the Foreign Sovereign Immunities Act. I say “arguably” because the statute has various exceptions, including an exception for acts of torture under color of law. I do not want to address the merits of the immunity issue. Rather, I want to suggest that under cases such as Nikbin v. Islamic Rep. of Iran, 471 F.Supp.2d 53, 65-66 (D.D.C. 2007), it seems to me that Devi is probably required to serve process using the methods prescribed by the FSIA for service on the state itself. After attempting service under the Convention, the statute—if it applies—will require Devi to attempt service by mail, and then to make service through the diplomatic channel. These methods of service must be carried out in the order prescribed by the statute. Service by publication is not a permissible method of service under the FSIA, if this is indeed an FSIA case.

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