Devi v. Silva
861 F. Supp. 2d 135
S.D.N.Y.2012Background
- Two Sri Lankan nationals sue Deputy Permanent Representative to the UN for torture, wrongful death, and related harms allegedly by Sri Lankan military in 2008-2009.
- Plaintiffs allege Silva exercised command control and aided and abetted abuses against Tamil targets and civilians in Sri Lanka.
- Victims: Devi (extrajudicially killed after surrender) and Sivam (killed after hospital shelling; injury to his leg prior).
- Claims under ATCA, TVPA, and common law/international law for torture, cruel treatment, intentional infliction of emotional distress, and wrongful death.
- Defendant moves to dismiss under Diplomatic Relations Act 22 U.S.C. § 254d, asserting diplomatic immunity.
- Court grants motion, concluding Silva is a diplomatic agent entitled to immunity, precluding merits and subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Silva is immune under the Diplomatic Relations Act | Silva entitled to immunity as UN diplomat; immunity bars suit. | Silva is a current accredited diplomat with immunity; action must be dismissed. | Yes; immunity applies and warrants dismissal for lack of jurisdiction. |
| Whether Silva qualifies as a diplomatic agent under Vienna Convention | Diplomatic immunity should be limited; no full immunity for past acts. | Silva is a diplomatic agent with full immunity; automatic dismissal warranted. | Yes; Silva is a diplomatic agent presumptively entitled to immunity. |
| Whether jus cogens violations carve out an immunity exception | Torture/extrajudicial killings are jus cogens; immunity should not apply. | No jus cogens exception to diplomatic immunity recognized. | No; no jus cogens exception recognized to defeat immunity. |
| Whether ATCA/TVPA liability overrides immunity | ATCA/TVPA should permit claims notwithstanding immunity. | Immunity under DR Act controls; ATCA/TVPA do not override it when immunity applies. | No override; DR Act immunity governs when applicable, precluding relief. |
Key Cases Cited
- Tachiona v. Mugabe, 386 F.3d 205 (2d Cir. 2004) (diplomats accredited to the UN have broad immunity)
- Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010) (UN diplomats enjoy civil immunities; CPIUN is self-executing)
- Sabbithi v. Al Saleh, 605 F.Supp.2d 122 (D.D.C. 2009) (government views on diplomatic immunity persuasive)
- Aidi v. Yaron, 672 F.Supp.2d 516 (D.D.C. 1987) (diplomat immune despite grave allegations)
- Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (Supreme Court 1984) (specific statute not controlled by general one)