Oct 09 (Just Security) Recent developments in a pair of human rights cases in U.S. federal court against former Sri Lankan Defense Minister and current presidential hopeful Gotabaya ("Gota") Rajapakse may delay key efforts by litigators to hold him accountable for war crimes committed during the country's brutal civil war.
The plaintiffs in the cases are racing against time: should Gotabaya win the presidential election scheduled for Nov. 16, he may be entitled to head of state immunity. The cases in the Central District of California are unfolding against the backdrop of efforts in Sri Lanka to challenge Gotabaya's eligibility for the presidency based on questions about whether he rightfully has U.S. or Sri Lankan citizenship.
As has been discussed at length on Just Security (here, here, and here), defendant Gotabaya helped oversee the brutal final phases of the war as defense minister to his brother, then-President Mahinda Rajapaksa. The nearly three-decade-long civil conflict pitted government forces against the Liberation Tigers of Tamil Eelam (LTTE).
As we have reported, there is significant evidence in the public record that Gota himself directed the bombing of civilian hospitals and the killing of civilians to pummel the LTTE into submission. In the notorious "white flag incident," documented by a United Nations Panel of Experts convened by the U.N. Secretary-General, former Sri Lankan Army Commander Sarath Fonseka alleged that Gota ordered the summary execution of surrendering LTTE leaders and their families as they emerged from their hideout frantically waving a white flag.
Just Security's co-editor in chief, Professor Ryan Goodman of NYU Law, argued in 2015 that members of the Rajapaksa regime should be criminally prosecuted for their involvement in these atrocities given the significant likelihood that the Rajapaksa brothers would again make a bid for power. Indeed, as a naturalized U.S. citizen, Gotabaya could have been prosecuted under the War Crimes Act of 1996 (see our prior coverage here), intended to prosecute war crimes committed by U.S. citizens committed anywhere in the world. Charges never materialized, however, and -as feared -Gota is now running for president.
Gota was nominated by the Sri Lanka Podujana Peramuna Party (SLPP) on Aug. 11, 2019, but not before human rights lawyers filed two suits against him in the Central District of California.
The Summary Execution Case: Killing a Journalist
In one suit with the San Francisco-based Center for Justice & Accountability (CJA), plaintiff Ahimsa Wickrematunge brought a case against Rajapaksa for the extrajudicial killing of her late father, famed Sri Lankan journalist and former editor-in-chief of The Sunday Leader, Lasantha Wickrematunge.
Lasantha had foreordained his assassination in a poignant and prescient editorial left for posthumous publication: "When finally I am killed, it will be the government that kills me." In late 2007, Lasantha had begun reporting on a corruption scandal involving the Sri Lankan military, then headed by Gotabaya. Gotabaya subsequently filed a defamation suit against Lasantha's paper, and the State Intelligence Service began surveilling his phone. On Jan, 8, 2009, Lasantha alerted colleagues that he was being followed as he drove to work. Shortly after, he was stabbed in the head by unknown assailants clad in black and driving on motorcycles.
Lasantha's daughter, Ahimsa, moved with her mother and siblings to Australia to escape threats connected to Lasantha's publications. In the U.S. suit, Wickrematunge v. Rajapakse, which was brought under both the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), Ahimsa argues that the assassination of her father was part of a more widespread and systematic attempt by Sri Lanka's government to silence journalists during the war. The defendant's citizenship will be crucial to overcoming the presumption against extraterritoriality applicable to the ATS since the Supreme Court decided Kiobel v. Royal Dutch Shell. (The TVPA, by contrast, is expressly extraterritorial, so its reach was not altered by Kiobel).