The Page One story on Aug 2 in Daily Mirror and some other dailies from Colombo under the heading, “US gunning for Gota?”, brought up the question: How serious is the threat of War Crimes case against Gotabaya Rajapaksa, the defence secretary, and unquestionably the real hero of the war against Prabhakaran’s Eelam gang. But for the leadership he had provided to the Army at a crucial time, Sri Lanka could not have stamped out the LTTE scourge from its soil. That he is the all-powerful brother of the President, who is popular across the ethnic divide, helped matters.
For the Americans, who have been trying to push Sri Lanka to a corner on war crimes accountability, Gotabaya is a good target – not necessarily a soft target though. Firstly he had directed the last lap of the war against the LTTE, when, according to the US, severe war crimes took place. Secondly, he is an American citizen.
During a Congressional briefing, Ryan Goodman, co-editor-in-chief of Just Security, told the lawmakers that there are legal avenues to prosecute Gotabaya Rajapaksa for war crimes as he is a US citizen for war crimes.
“The most obvious avenue (to prosecute Gotabaya) is federal criminal statue in the War Crimes, Act of 1966, which applies to US citizen like Gotabaya,” he said. The Justice Department could also consider pursuing civil liability if there were insufficient evidence for a criminal indictment, according to him.
Ryan Goodman has elaborated his views in two posts on his web site, justicesecurity.org (“Road Map I: What More Congress (and the Administration) Can Do to Promote Accountability in Sri Lanka”, and “Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes—The Case of Gotabaya Rajapaksa”)
He adds that Gotabaya may also be guilty of witness tampering. And in case there is insufficient evidence for a criminal indictment (e.g., intercepts that could not be produced at trial), the Justice Department could consider pursuing civil liability offences which might apply to Gotabaya.
He lists some such offences as
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]
Ryan Goodman, in his presentation told the American lawmakers that they consider to investigate Gotabaya’s tax returns and related documents that he might — or might not — have filed with the IRS as a US citizen living abroad. Gotabaya can also be hauled up “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 counter-insurgency operations in the late 1980s”, Ryan elaborated pointing to the fact that Gotabaya was Coordinating Officer of the Matale District and the Commanding Officer of the 1st Battalion, Gajaba Regiment during the late 1980s.
The short point is the menu of options for prosecuting Gotabaya is not short. And if the American establishment is to pursue the issue seriously, it spells trouble for Gotabaya. But the million dollar question is: Will the US take line?
One thing is clear though. Like Gotabaya, Gen Sarath Fonseka, then army chief, was also a long-term permanent resident of the United States.
The Department of Homeland Security (DHS) seriously considered in Oct 2009 making Fonseka a source (witness) against human rights violations done by Gotabaya in what has come to be known as “White Flag” incident. According to some versions in circulation, 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 in May 2009.
The DHS scheduled an interview with Fonseka for Nov 4, 2009. A day before the meeting, the Sri Lanka bluntly told the DHS to “forthwith desist from any endeavor in this direction”. Both in person and in an aide memoire to US ambassador to Colombo, the foreign minister stated that the interview with Fonseka should not take place (WikiLeaks). And Fonseka left the US for home before the scheduled interview, making the DHS exercise infructuous. To the relief of Gotabaya!
Now Fonseka has scores to settle with the Rajapaksas for the court martial proceedings he had faced at the end of Eelam War. He is also facing a court case for his interview to The Sunday Leader (in Dec 2009) that the orders for the White Flag incident came from the Secretary Defence. And on May 5, 2010, 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”.
It is this remark that has not been rolled back that makes the future war crimes probe scenario pregnant with all possibilities.
—RAM SINGH KALCHURI
