{"id":32444,"date":"2014-08-11T00:05:43","date_gmt":"2014-08-11T04:05:43","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=32444"},"modified":"2014-08-11T00:05:43","modified_gmt":"2014-08-11T04:05:43","slug":"road-map-2-legal-avenues-to-prosecute-a-us-citizen-for-war-crimes-the-case-of-gotabaya-rajapaksa","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=32444","title":{"rendered":"Road Map 2- Legal Avenues to Prosecute a US Citizen for War Crimes\u2014The Case of Gotabaya Rajapaksa"},"content":{"rendered":"


\nBy Ryan Goodman<\/strong><\/p>\n

(Ryan Goodman is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law.This opinion piece is reproduced from Just Security)<\/em><\/p>\n

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.<\/p>\n

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\u2014for which the US government is interested in seeking accountability.<\/p>\n

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, \u201cTimeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide.\u201d<\/p>\n

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.<\/p>\n

So, what legal avenues might be available to the administration in the case of Gotabaya?<\/p>\n

<\/p>\n


\nA. Justice Department<\/strong><\/p>\n

1. Criminal Liability: War Crimes Act<\/em><\/p>\n

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.<\/p>\n

2. Civil\/criminal liability: Civil RICO<\/em><\/p>\n

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 \u2014 a vehicle for addressing organized criminal activity including international crimes.<\/p>\n

Here is a sample of predicate offences (i.e., forms of \u201cracketeering\u201d) which might apply to Gotabaya:<\/p>\n

1)<\/strong> Torture committed by a US citizen abroad of foreign nationals [18 U.S. Code \u00a7 2340A]<\/p>\n

2)<\/strong> Serious bodily harm or murder of any Sri Lankan with (dual) US nationality committed outside the United States [18 U.S. Code \u00a7 2332]<\/p>\n

3)<\/strong> Tampering with a witness or an informant [18 U.S. Code \u00a7 1512]<\/p>\n

4)<\/strong> Retaliation against a witness or an informant [18 U.S. Code \u00a7 1513]
\nThe last two on the list deserve elaboration with respect to how they might apply to Gotabaya. For that purpose, see the Timeline below.<\/p>\n

[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.]<\/p>\n


\nB. Justice Department and other agencies<\/strong><\/p>\n

1. IRS: Tax evasion<\/em><\/p>\n

The Al Capone strategy: It may be worthwhile to investigate Gotabaya\u2019s assets compared to any tax documents that he might \u2014 or might not \u2014 have filed with the IRS as a US citizen living abroad.
\n
\n2. DHS \u2013 Human Rights Violators and War Crime Unit: Immigration fraud<\/em>
\nAs with past successes in similar cases (see also here and here), the government might prosecute Gotabaya for failure to disclose material information\u2013involvement in past crimes\u2013in his application for U.S. citizenship.<\/p>\n

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\u2019s 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.<\/p>\n

In sum, the menu of options for prosecuting Gotabaya is not short. Now let\u2019s turn to the timeline\u2026
\nTimeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry?
\n
\nYou Decide<\/strong><\/p>\n

1. May 18, 2009<\/em>
\nGotabaya may have ordered the commander of the army\u2019s 58th Division to execute all surrendering members of the LTTE leadership at the close of the civil war (widely known as the \u201cwhite flag\u201d incident and discussed in State Department reports to Congress).<\/p>\n

2. October 28, 2009<\/em>
\nSri Lanka\u2019s 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 \u201cthe intention behind the request for the interview is to use him \u2018as a source against human rights violations done by Secretary\/Defence.\u2019\u201d The interview was scheduled for November 4. [See also here]<\/p>\n

3. November 2, 2009<\/em><\/p>\n

In person and in an aide memoire, Sri Lanka\u2019s Foreign Minister told the US Ambassador in Sri Lanka that the interview should not take place and that \u201cthe Department of Homeland Security should forthwith desist from any endeavor in this direction.\u201d<\/p>\n

4. On or before November 4, 2009<\/em>
\nFonseka left the United States before the scheduled interview.<\/p>\n

5. December 13, 2009<\/em><\/p>\n

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 \u201cthey must all be killed.\u201d<\/p>\n

6. December 14, 2009<\/em><\/p>\n

Fonseka confirmed and confided the same information about Gotabaya to the US Ambassador.<\/p>\n

7. February 8, 2010<\/em><\/p>\n

Fonseka made a statement that he was prepared to testify in international courts about the war crimes. As the BBC reported:<\/p>\n

\u201cGen Fonseka had said he was prepared to give evidence in international courts on any war crimes charges brought in relation to the civil war. \u2018I 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,\u2019 Gen Fonseka said.\u201d<\/p>\n

Later that day Foneska was arrested by military police (under the jurisdiction of Gotabaya).<\/p>\n

8. February-May 2010<\/em><\/p>\n

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.<\/p>\n

9. May 5, 2010<\/<\/em><\/p>\n

Speaking to reports inside Parliament, Fonseka stated: \u201cI will go out of my way to expose anyone who has committed war crimes;\u201d \u201cI will not protect anyone, from the very top to the bottom;\u201d he said the government was \u201chell bent\u201d on silencing him. [Agence France-Presse]<\/p>\n


\n10. May 6, 2010<\/em><\/p>\n

In an interview with a national newspaper, Gotabaya reacted to Fonseka\u2019s willingness to assist an international war crimes investigation. Gotabaya stated: \u201cAny Sri Lankan promoting an agenda which is detrimental to the country is nothing but a traitor,\u201d he referred to Fonseka\u2019s effort to fast track a \u201csinister campaign\u201d in supporting an international war crimes probe, and he said such tratiors deserve capital punishment.<\/p>\n

To this day, Gotabaya\u2019s interview is proudly displayed on his Department of Defense\u2019swebsite with the title, \u201cTraitors should be given Capital punishment.\u2019 [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.\u201d]<\/p>\n

11. June 6, 2010<\/em><\/p>\n

In an interview with BBC\u2019s Hardtalk, Gotabaya was told that Fonseka said he would testify against Gotabaya before an independent war crimes investigation. Gotabaya responded:<\/p>\n

\u201cHe can\u2019t do that. He was the commander. \u2026 That is a treason. We will hang him if he do[es] that.\u201d
\n[also discussed in State Dep\u2019t report to Congress]<\/p>\n

12. November 18, 2010<\/em><\/p>\n

A Colombo High Court found Fonseka guilty of spreading the \u201cwhite flag\u201d rumor, which \u201ccould arouse communal feelings,\u201d and sentenced him to three years\u2019 imprisonment.
\n[The State Department\u2019s report suggests the trial was illegitimate]<\/p>\n

13. May 21, 2012<\/em><\/p>\n

Fonseka is released from prison.<\/p>\n

14. Now<\/em><\/p>\n

You decide.<\/strong> Is the case against Gotabaya worth pursuing?<\/em><\/p>\n

My take:<\/strong> 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.<\/em><\/p>\n

Tweet<\/a><\/div>","protected":false},"excerpt":{"rendered":"

By Ryan Goodman (Ryan Goodman is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law.This opinion piece is reproduced from Just Security) This is the second post arising out of a presentation I made at a congressional briefing earlier this month on issues …<\/p>\n

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