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.
