Legal Avenues to Prosecute a US Citizen for War Crimes-The Case of Gotabaya Rajapaksa - By Ryan Goodman

Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes-The Case of Gotabaya Rajapaksa - By Ryan Goodman

Wednesday, July 30, 2014 at 1:13 PM

This is the second post arising out of a presentation I made at a congressional briefing earlier this month on issues of accountability in Sri Lanka. The analysis below is also drawn from my opening remarks, and the further refinement of my ideas in light of discussions following the briefing.

[The first "road map" dealt with more general issues of accountability in Sri Lanka: "Road Map I: What More Congress (and the Administration) Can Do to Promote Accountability in Sri Lanka"]

Here I highlight the various laws that might assist the Justice Department and other agencies in prosecuting US citizen, Gotabaya Rajapaksa. In another post back in May, I described some of the evidence in the public record about his alleged involvement in mass war crimes-for which the US government is interested in seeking accountability.

Sometimes the cover-up is more easily proven than the crime. And Gotabaya may also be guilty of witness tampering. At the end of this post I therefore include a detailed, "Timeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide."

The following analysis may be helpful to members of Congress as well as the administration. The Justice Department and other agencies are not able to comment on ongoing investigations. Accordingly, it would be helpful, I imagine, if members of Congress simply sent a letter to relevant offices within the administration expressing interest and hope that they will pursue with full rigor any information and all legal avenues that establish criminal or civil liability for the most serious violations of US federal law by individuals subject to our jurisdiction.

So, what legal avenues might be available to the administration in the case of Gotabaya?

A. Justice Department

1. Criminal Liability: War Crimes Act

As discussed in previous posts by Beth Van Schaack (here) and by me (here), the most obvious federal criminal statute is the War Crimes Act of 1996, which applies to U.S. citizens like Gotabaya.

2. Civil/criminal liability: Civil RICO

If there were insufficient evidence for a criminal indictment (e.g., intercepts that could not be produced at trial), the Justice Department could also consider pursuing civil liability. Consider, for example, Civil RICO - a vehicle for addressing organized criminal activity including international crimes.

Here is a sample of predicate offences (i.e., forms of "racketeering") which might apply to Gotabaya:

1) Torture committed by a US citizen abroad of foreign nationals [18 U.S. Code § 2340A]

2) Serious bodily harm or murder of any Sri Lankan with (dual) US nationality committed outside the United States [18 U.S. Code § 2332]

3) Tampering with a witness or an informant [18 U.S. Code § 1512]

4) Retaliation against a witness or an informant [18 U.S. Code § 1513]

The last two on the list deserve elaboration with respect to how they might apply to Gotabaya. For that purpose, see the Timeline below.

[Of course these predicate acts for the purpose of RICO could also be prosecuted as independent charges under federal criminal law. The purpose of the present analysis is to identify potential civil liability, to which RICO lends itself.]

B. Justice Department and other agencies

1. IRS: Tax evasion

The Al Capone strategy: It may be worthwhile to investigate Gotabaya's assets compared to any tax documents that he might -or might not - have filed with the IRS as a US citizen living abroad.

2. DHS - Human Rights Violators and War Crime Unit: Immigration fraud.

As with past successes in similar cases (see also here and here), the government might prosecute Gotabaya for failure to disclose material information-involvement in past crimes-in his application for U.S. citizenship.

The key here is conduct prior to his acquisition of citizenship. For example, consider that in December 2012, excavators uncovered a mass grave in the Matale district dating back to the Sri Lankan Army's counterinsurgency operations in the late 1980s. What has that to do with Gotabaya? He was Coordinating Officer of the Matale District and the Commanding Officer of the 1st Battalion, Gajaba Regiment during the late 1980s.

In sum, the menu of options for prosecuting Gotabaya is not short. Now let's turn to the timelin ...

Timeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide

1. May 18, 2009

Gotabaya may have ordered the commander of the army's 58th Division to execute all surrendering members of the LTTE leadership at the close of the civil war (widely known as the "white flag" incident and discussed in State Department reports to Congress).

2. October 28, 2009

Sri Lanka's then-Army Chief Sarath Fonseka (who happens to be a long-term permanent resident of the United States) was in the United States on a personal visit. He was contacted by the Department of Homeland Security to schedule a special interview and was reportedly told by the DHS that "the intention behind the request for the interview is to use him 'as a source against human rights violations done by Secretary/Defence.'" The interview was scheduled for November 4. [See also here]

3. November 2, 2009

In person and in an aide memoire, Sri Lanka's Foreign Minister told the US Ambassador in Sri Lanka that the interview should not take place and that "the Department of Homeland Security should forthwith desist from any endeavor in this direction."

4. On or before November 4, 2009

Fonseka left the United States before the scheduled interview.

5. December 13, 2009

In an interview with the newspaper The Sunday Leader concerning the white flag incident, Fonseka stated that Gotabaya had given the order on May 18, 2009 that "they must all be killed."

6. December 14, 2009

Fonseka confirmed and confided the same information about Gotabaya to the US Ambassador.

7. February 8, 2010

Fonseka made a statement that he was prepared to testify in international courts about the war crimes. As the BBC reported:

"Gen Fonseka had said he was prepared to give evidence in international courts on any war crimes charges brought in relation to the civil war. 'I am definitely going to reveal what I know, what I was told and what I heard. Anyone who has committed war crimes should definitely be brought into the courts,' Gen Fonseka said."

Later that day Foneska was arrested by military police (under the jurisdiction of Gotabaya).

8. February-May 2010

The Sri Lankan military brought court martial proceedings against Fonseka. The government also filed a separate civil charge against Fonseka on the ground that he had incited unrest due to his interview with The Sunday Leader.

9. May 5, 2010

Speaking to reports inside Parliament, Fonseka stated: "I will go out of my way to expose anyone who has committed war crimes;" "I will not protect anyone, from the very top to the bottom;" he said the government was "hell bent" on silencing him. [Agence France-Presse]

10. May 6, 2010

In an interview with a national newspaper, Gotabaya reacted to Fonseka's willingness to assist an international war crimes investigation. Gotabaya stated: "Any Sri Lankan promoting an agenda which is detrimental to the country is nothing but a traitor," he referred to Fonseka's effort to fast track a "sinister campaign" in supporting an international war crimes probe, and he said such tratiors deserve capital punishment.

To this day, Gotabaya's interview is proudly displayed on his Department of Defense's website with the title, "Traitors should be given Capital punishment.' [This is also consistent with another statement by Gotabaya to the BBC, "I am not allowing any investigations in this country. There is no reason. Nothing wrong happened in this country."]

11. June 6, 2010

In an interview with BBC's Hardtalk, Gotabaya was told that Fonseka said he would testify against Gotabaya before an independent war crimes investigation. Gotabaya responded:

"He can't do that. He was the commander.... That is a treason. We will hang him if he do[es] that."

[also discussed in State Dep't report to Congress]

12. November 18, 2010

A Colombo High Court found Fonseka guilty of spreading the "white flag" rumor, which "could arouse communal feelings," and sentenced him to three years' imprisonment.

[The State Department's report suggests the trial was illegitimate]

13. May 21, 2012

Fonseka is released from prison.

14. Now

You decide. Is the case against Gotabaya worth pursuing?

My take: The US government has poured its credibility into promoting accountability in Sri Lanka. The United States now cannot afford to stand by when its own citizen is directly interfering with prospects for independent war crimes investigations.

Sri Lanka MP Duminda Silva back in politics to lead lumpen

What is ahead?

Duminda Silva is out released on bail. Looks sound and vows to be back in active politics.

His lawyer Hemantha Warnakulasuriya might be further clever to prove what he told to courts about MP Duminda Silva's health.

Government needs him. He is a promising man who can mobilize Colombo lumpen better than Thilanga Sumathipala or Mahinda Kahandagamage.

These lumpen when summon to streets may help the government to sabotage the struggles of the working masses.

Be careful! Duminda is out!

Police coming before growth in Sri Lanka

(April 27, Colombo - Lanka Polity) Two news stories that were published in media today can be outlined to show an aspect of the path the Sri Lankan rulers are taking now in the post-war period.

In the first story Sri Lanka Defense Secretary Gotabhaya Rajapaksa says that the police have been directed to launch an operation to eliminate the crime network that erupted through terrorism and spread island wide.

The first and foremost question that arises is this. Are the authorities targeting only the crime network that erupted through terrorism? What about the crime network that was fed by the politicians to maintain politically motivated terror or sheer state terrorism?

Anyway, when the police actions are initiated the goons will have a difficult time. We can expect more incidents of arrested suspects trying to escape when they have gone to show weapons to be shot dead by police in the middle of the night.

One cannot isolate and safeguard the politically influenced crime network since it is intertwined with the other networks. Many of the rowdies that were riding in jeeps of the vehicles of the election candidates of the ruling party will have to go in hiding. Will their bosses risk their lives to save them? Who knows and who cares to recycle these lumpen waste? They will bring new elements from gutters when they want them again. Until then, it is safe to see them gone with all the secrets they know.

The Defense Secretary said addressing a meeting held yesterday after opening a newly set up Sri Lanka Police Academy in Katana that a wave of crime related to arms, drugs, underworld and ransom taking is spread around the country.

The Defense Secretary further stated that the police had to assist the armed forces during the war in the last three decades and police powers could not be fully implemented in taking actions against the crime network.

Mr. Rajapaksa also said that the police official needed to be trained systematically since most of the present officials were recruited during war and they were trained basically on anti-terrorism actions.

The Police Academy opened yesterday in Katana can facilitate training for 600 officials in one batch. The academy is attached to Kelaniya University.

The rulers need to police the country even before they put the economy properly to the track of growth. They have a good chance now to establish and their own past and present of promoting lawlessness seems haunting and policing seems needed thoroughly right from the beginning.

The second news story is related to private buses. This time the author is not a state actor. He is a leader of a small and mediums scale business forum.

The Chairman of Sri Lanka Private Omnibus Owners’ Association Gemunu Wijerathna says that steps will be taken since May 01 to stop begging and hawking in private buses.

He pointed out that these kinds of actions are illegal in accordance with the license issued by the Sri Lanka Central Transport Authority to the private bus owners. However, they continue since the law enforcement authorities do not act with force. Sometimes, bus employees are threatened by the elements that profit through begging and hawking, Mr. Wijerathna said.

Sri Lanka’s private bus industry is ailing due to many problems. The service is low in standard due to reasons like undisciplined behavior of the bus employees, break of road regulations, poor condition of buses, overloading etc. The bus owners have no solutions to these urgent issues. Instead, they want swift action against a lumpen class that make living from the industry.

The private bus industry is also intertwined with the crime network in many ways. Ransom takers run the bus stands. Thugs run buses. Most of the buses were 'decorated' with the posters of President Mahinda Rajapaksa and his general election candidates in the past few months.

Sri Lanka's upper and middle classes look interested in getting rid of the gutter elements that they were engaged in the past. So they need policing against the lumpen elements of the society.

These can be the preliminary actions of a police state. Suppressing of crime network may raise the popularity of the rulers among the middle classes. But the dire need of the government is to police the working classes so that they may not raise the salary issues in future. A 'disciplined' or a silenced working class is the basic need for the government for the rapid economic growth it is targeting in the island.

That is why the police coming before growth.

Let them finish what they started in Sri Lanka

(March 23, Colombo - Lanka Polity) Sri Lanka President Mahinda Rajapaksa is honored by Sinhalese for eliminating 'terrorism'. The term is generally used to define Sri Lanka Tamil's long drawn struggle for identity in the political system.

Under the rule of Rajapaksas, a rapid transformation took place in governance and politics as well. The liberal democrats might not like it but the majority of the voters had endorsed it. It is a transformation from the accepted norms of the democracy to a new political culture that the time will define ultimately some day.

We perceive that this trend in Sri Lanka cannot be averted now. Then why don't we allow to thrive it so that it can reach its culmination as early as possible.

Sri Lanka Defense Secretary Gotabhaya Rajapaksa told The Divaina Sinhala daily today that no one could ban him addressing political rallies.

The Defense Secretary made this comment to the newspaper in response to the criticism against him on addressing political propaganda rallies of some candidates of the ruling United People’s Freedom Alliance (UPFA).

“Some question my addresses in political rallies. The way the terrorism in the north was eliminated and the situation of the country must be explained to the people. Anyone can say anything they like,” the newspaper quoted the Defense Secretary. He added that some elements could not put up with him addressing the meetings.

It is clear that the senior public officials that are paid with public coffers have no political rights according with the election laws and the code of ethics for the public servants of Sri Lanka. But what are the laws for in this country where the powerful politicos can stand above them?

Meanwhile, Sri Lanka Minister of Labor Mervin Silva urged the voters of Gampaha district to usher Mr. Basil Rajapaksa to the premiership of the country following the upcoming election.

Addressing a religious ceremony held in Kelaniya temple, the Minister anticipated a two third majority to the ruling United People’s Freedom Alliance at the general election and said that Mr. Basil Rajapaksa should be given the real leadership that can lead the parliamentary group.

Mr. Basil Rajapaksa, the brother of the President Mahinda Rajapaksa, contests the general election from Gampaha district leading the district team of candidates. He is a national list MP and the senior adviser to the President. Minister Mervin Silva is also a national list MP. He is also a candidate for Gampaha district.

Come on, Mervin!

Sri Lanka president to use the UN war crime charges to bank sympathetic votes

(December 22, Colombo - Lanka Polity) The interview given by opposition presidential candidate of Sri Lanka Sarath Fonseka to the Sunday Leader newspaper on December 13, 2009 wherein he alleges that three Liberation Tigers of Tamil Ealam (LTTE) leaders who came to surrender with white flags during the final stages of the battle were shot dead by ground troops that were following the orders of Defense Secretary Gotabhaya Rajapaksa, has opened an UN probe into possible war crimes charges against the government.

However, the government ahead of an unexpected competition in the presidential on January 26 has decided to manipulate the scenario to rouse patriotism among masses and to bank the floating votes disregarding the risk factor. The government has assigned Sinhala nationalist ex-Marxist Wimal Weerawansa, the leader of the National Freedom Front (JNP), to run a campaign to grow hatred among security forces against Fonseka. He also begs to people to come to streets in defense of the Rajapaksas to show gratitude for the service they rendered in wiping out terrorism.

Weerawansa, who has begun to advise the government in legal affairs since recent times urged issuing a press statement, to bring Sarath Fonseka before the martial court and punish him under martial law.Weerawansa is delivering a series of fiery speeches in this regard and urges the government to forget the presidential and to take action to avoid further betrayals. 

However, the more responsible government politicians including arch Sinhala nationalist militant leader of the National Heritage (JHU) Champika Ranawaka have been instructed by the government to be prudential since the government has been advised to face the problem diplomatically.

United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Philip Alston in a letter to President Mahinda Rajapaksa has demanded an explanation regarding the allegations made by Fonseka that the Defence Secretary has instructed the Commander of the 58th Brigade of the Sri Lanka Army to shoot those surrendering.

The United Nations is inquiring particularly “the circumstances of the death of three representatives of the Liberation Tigers of Tamil Eelam (LTTE) Balasingham Nadeshan, Seevaratnam Pulidevan and Ramesh, as well as members of their families, in the night of 17 to 18 May, 2009.”

In his letter, Alston says that the information that he has received are based on the allegations made by Sarath Fonseka in the above mentioned interview. He also says “accounts of journalists embedded with the SLA 58th Brigade confirm some of the alleged circumstances of the deaths of Nadeshan, Pulidevan and Ramesh and their families.” Referring to “fundamental legal rules applicable to all armed conflicts under international humanitarian law and human rights law”, particularly Article 5 of the Geneva Conventions of 1949, the Special Rapporteur has inquired about the accuracy of the allegations and demanded information and documentary proof in the event that the accusations are inaccurate.The letter also seeks information on the family members of Nadeshan , Pulidevan and Ramesh.