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One Way Sri Lanka Can Shield its ex-Defense Secretary from a U.S. Criminal Prosecution

Last week, Sri Lanka’s Justice Deputy Minister responded to an Op-Ed that I published in the New York Times, in which I described reasons that the United States can and should pursue a criminal investigation of U.S. citizen and Sri Lanka’s ex-Defense Secretary, Gotabaya Rajapaksa. In this post, I respond to the Deputy Minister’s statement that his administration would protect Mr. Rajapaksa from a criminal trial by the United States, if it ever came to that.

Here are the key parts of the Deputy Minister’s remarks, published in the state-owned newspaper News Daily:

“It is true according to the said U.S. war crimes statute enacted in 1996, that nationality requirement is easily satisfied in terms of Gotabhaya Rajapaksa’s U.S.citizenship for them to prosecute him.”

“But not within Sri Lanka’s jurisdiction,” he explained.

“No other country can do what it likes in our jurisdiction. Gotabhaya Rajapaksa is safe as long as he stays within the jurisdiction of Sri Lanka,” explained Deputy Minister Senasinghe. Asked what the government’s position was in regard to probing allegations of war crimes in Sri Lanka in view of the UN inquiry which is already underway in this respect, Senasinghe said: “our position is very clear. We will conduct a domestic probe with the assistance of the UN.”

Under the law, it is true that President Sirisena’s administration could legally secure Mr. Rajapaksa’s safety from a U.S. war crime prosecution if he stays in Sri Lanka—under one condition. The Sri Lankan government would have to prosecute him themselves.

The United States and Sri Lanka have a long-standing extradition agreement that would apply directly to Mr. Rajapaksa and to the offences he allegedly committed.  Unequivocally, article 1 of that agreement obligates Sri Lanka to extradite “persons sought by the authorities of the [United States] for trial or punishment for an extraditable offence.” Accordingly, although the Deputy Minister’s statement is true—that “no other country can do what it likes in our jurisdiction”—Sri Lanka has already formally agreed to give the United States access to criminal suspects in such cases.

The Deputy Minister may well recognize that the obligation to extradite would loom over the case. His statement that Mr. Rajapaksa “is safe as long as he stays within the jurisdiction of Sri Lanka” suggests he knows that Mr. Rajapaksa could also put himself in jeopardy by stepping foot in other countries that have an extradition agreement with the United States. As things stand, he cannot fly with ease to London for a weekend, an important conference, or a relative’s graduation—who knows whether a sealed US indictment may already be out there, in which case he could be apprehended at Heathrow and extradited to the United States (see Section 5(2) of the UK-US extradition agreement).

There is one legal “escape” from the obligation to extradite, however.

The bilateral agreement between Sri Lanka and the United States, like most extradition agreements, prohibits cases of “double jeopardy”—prosecuting the person twice for the same crime. Article 5 states: extradition “shall not be granted” when the individual has already been subject to prosecution and “convicted or acquitted” of the offenses in the home state. But that requires a full-blown and genuine trial, and nothing short of it. Article 5, indeed, stipulates that extradition shall not be precluded if local authorities “decided not to prosecute the person … or to discontinue any criminal proceedings.” Sri Lanka would have to see a trial through to the end.

In short, if Sri Lanka prosecutes Mr. Rajapaksa that could indeed shelter him and preserve the country’s broader sense of autonomy. But if the Sri Lankan authorities do not act, at some point another party—in this case the United States in pursuit of its own citizen—might step in. As I discuss in the op-ed, hopefully the Obama administration will signal a commitment to pursue such a path so that Sri Lankans are encouraged to take the legal matter into their own hands first. Recent public statements by senior Sri Lankan officials may indicate that they genuinely believe there is sufficient political space for such a prosecution—including an important interview with the new Foreign Minister (and here and here) and by President Sirisena’s then spokesperson and now Minister off Health and Cabinet Spokesperson. The United States can help engage current political will to ensure the pronouncements of these senior officials become tangible government policy.

[Editor’s Note: For more, see Just Security‘s earlier coverage of Sri Lanka.]

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About the Author

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. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).