By
C.A.Chandraprema
Last week, a presentation made to the US Congress by an American Professor of Law by the name of Ryan Goodman outlining how Defence Secretary Gotabhaya Rajapaksa can be tried in a US court for war crimes committed in Sri Lanka gained much publicity in this country.
The American government has been pushing for an international war crimes inquiry against Sri Lanka for some time now, but this was the first time it got personal with an American legal luminary actually outlining how Gotabhaya Rajapaksa who is a dual US-Sri Lankan citizen can be tried in a US court for war crimes.
Goodman followed up his Congressional briefing with an article in a blog edited by him titled “Legal Avenues to Prosecute a US Citizen for War Crimes – The Case of Gotabhaya Rajapaksa.” The article argued that since the American government was promoting accountability in Sri Lanka it was duty bound to prosecute under US law, the main war criminal Gotabhaya Rajapaksa who is a US citizen and therefore within US jurisdiction.
Prof. Goodman has also outlined the American laws that Gota can be tried under. The principal piece of legislation he mentions is the US War Crimes Act of 1996 which features as section 2441 of the US Crimes and Criminal Procedure Code. Several other laws that Gota can be tried under are also mentioned including Section 2340A of the US Crimes and Criminal Procedure Code which deals with torture committed by a US citizen on a foreign national, but it is clear that the primary piece of legislation that Goodman is relying on is the War Crimes Act of 1996.
This law which was introduced during the Clinton administration gives American courts the ability to try war crimes committed anywhere in the world by US citizens or members of the US armed forces and impose even the death penalty on those found guilty. What is considered a war crime under this law are breaches of the Geneva Conventions and the Hague Convention on the Laws and Customs of War on Land.
Common Article 3 of the Geneva conventions which deals with conflicts of a non-international character prohibits the ill-treatment of persons not taking active part in the hostilities through murder, torture and execution without trial and the like. Since this Article of the Geneva Conventions applies to conflicts like that in Sri Lanka, Goodman is relying on the War Crimes Act of 1996 to bring Gota to book. There is a duality in the way American establishment conducts its affairs. On the one hand is the world of lofty ideals and principles, then there is the real world. The USA feels called upon to pose as the world’s shining example of justice much like the just Tamil King who is said to have had his own son run over by a chariot and killed because the latter had accidentally run over a calf and killed it. The Americans seem to believe that this kind of posturing gives them the moral authority to lead the world.
It is this need to strike a pose that motivates the USA to pass legislation like the War Crimes Act of 1996 which aims at showing the world that they subject their own citizens to strict laws. But while adopting various postures for the consumption of the public, the Americans are also frequently called upon to solve difficult problems on the ground in many parts of the world. In the real world, the ideals that the Americans espouse publicly are not easy to implement and this has given rise to a situation where some laws remain on paper but are never implemented.
The American establishment has over the decades evolved a system whereby there is an understanding among all sections of society – the political parties, the judiciary, the administrative hierarchy, the mass media and even the academia that some American laws are only for show and never for implementation. It is this delicate balance that enables the USA to espouse various ideals without hampering their ability to deal with practical situations. If not for this arrangement, the USA would become like Europe – hamstrung by their own ideals and laws and unable to deal with any practical issue and dependent on leadership from outside.
As far as the statute book is concerned, the Americans have laws that are so lofty that they offer redress to everybody in the world for injustices committed anywhere by anybody. Some months ago we wrote in this column how an American federal court began pursuing Indian Congress Party leader Sonia Gandhi for allegedly protecting, promoting and not taking action against those responsible for the 1984 anti-Sikh riots in India in the wake of Indira Gandhi’s assassination. This despite the fact that Sonia was not a US citizen and the riot in question had taken place in India. This was due to a private suit filed by a Sikh NGO in the Brooklyn District Court under the Alien Tort Statute and the Torture Victim Protection Act of 1992 which give the victims of human rights abuses overseas the right to sue the perpetrators in the US.
Technically, under these same laws, it should be possible for Iraqis and Afghans victimized by the USA, Britain and NATO to also to haul their tormentors to US courts. Many cases had in fact been filed against the American government and their allies in US courts under the same laws that were being used against Sonia Gandhi but they had all been mysteriously dismissed. There is an ‘invisible hand’ of connections and understandings that operates in the American system to protect their own citizens from certain laws that the Americans apply to outsiders. In the USA, all federal judges are appointed by the president with the approval of the Senate. All district attorneys who function under the Attorney General (the cabinet minister of justice) are also appointed by the president and in both cases, these are cronies and friends of the president.
This organic link between the judicial and executive branches of government greatly facilitates the operation of this invisible hand which protects Americans from ‘showpiece laws’. So the Alien Tort statute and the Torture Victim Protection Act of 1992 may be applied to foreigners but never against US citizens. If foreigners were allowed to litigate against US citizens for human rights violations committed overseas, that would be the end of America’s leadership position in the world, because they would not be able to deploy their army anywhere without an avalanche of litigation in domestic courts. So it is with the War crimes Act of 1996 as well.
David Scheffer, a former U.S.Ambassador at Large for War Crimes Issues (1997-2001) says that while the US War crimes Act exists on paper, no one has ever been prosecuted under it! If as Ryan Goodman recommends, Gota is hauled up before a US court under the War Crimes Act, he will be the first person to be prosecuted under this law. We have read in the press at various times that the US government has initiated court proceedings against members of its armed forces for various offences like killing civilians or torturing prisoners, but as Scheffer points out, this is done under US military law and not under the War Crimes Act of 1996. Offences that might to the outside world look like war crimes are not tried as war crimes but as offences against US military law.
As a result, serious crimes under the laws of war committed by U.S. military members are charged as often less severe common crimes under the military justice system. For example, the intentional killing of a person protected by the Geneva Conventions may be charged as ‘murder’ and torture charged as ‘aggravated assault’. War-related offenses tried by courts-martial will often carry lower maximum penalties. So we see that the USA has adopted a policy of preventing absolute impunity by trying outrages committed on the battlefield under military law while at the same time carefully avoiding any hint of war crimes by keeping out the very phrase from any litigation.
As far as the American establishment is concerned, war crimes are committed by outsiders but never by Americans (or Europeans). They know that if the US War Crimes Act of 1996 is ever applied to any American and a precedent created, that will be the end of America’s ability to deploy troops to meet various situations the world over. The US government will think twice about deploying troops anywhere because of the risk of war crimes charges against all those holding command responsibility.
So when Professor Ryan Goodman tells the American establishment to use the War Crimes Act of 1996 to prosecute Gota, he is in fact inviting the American establishment to commit suicide! Some may think that because Gota is only a black man, the Americans would prosecute him without a second thought. But if they prosecute any American – black, white, rich or poor – under the War Crimes Act as Goodman recommends or indeed the phrase ‘war crime’ is used in litigation against any American citizen in an American court of law, that will open a Pandora’s box which will put an end to the USA’s leadership role in the world and end up probably destroying Western civilization itself.
Goodman may be posing as a do-gooder who wears his heart on his sleeve, but in actual fact, his dangerous suggestion poses a bigger threat to the American system than anything Al Qaeda has been able to do up to now. How an academic so out of sync with the thinking of the American establishment can have any role – however minor – in the US Naval War College is perhaps something that the US Defence Dept. should look into.
(This is reproduced from the “Political Watch”Column in the “Sunday Island”of August 10th 2014)