Sri Lankan War Criminal Gotabaya Rajapaksa May Escape Accountability Yet Again, This Time by Running for President

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 (see here and here) 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).

The Torture Case

The other suit, Samathanam v. Rajapaksa, was brought on behalf of Roy Samathanam, who was tortured by government forces overseen by Rajapaksa. As I originally wrote at Just Security, Samathanam, a Canadian citizen, alleges that he was detained and tortured by the Terrorism Investigation Division of the Sri Lankan police from 2007 to 2010. This suit — brought exclusively under the TVPA by Hausfeld and the International Truth and Justice Project (ITJP) — raises no extraterritoriality concerns since the statute is expressly extraterritorial.

In an amended complaint filed on June 26, 10 other victims — 8 Tamil and 2 Sinhalese individuals denominated by pseudonyms for their safety — alleged that they too were detained and tortured by Sri Lankan police and in army camps.

For both cases, Gota was served with process while in a Trader Joe’s parking lot in suburban Los Angeles in April 2019. The cases are being heard in the Central District of California, known as a “rocket docket” for the speed at which it resolves matters before it.

Gotabaya’s lawyers at Arnold & Porter LLP filed motions to stay and to dismiss in both cases. The defense has argued that if Gotabaya wins the election, he would be entitled to absolute head of state immunity. In the alternative, his attorneys argued, principles of international comity, the doctrine of forum non conveniens, and the non-justiciability of the plaintiffs’ ATS and TVPA claims warranted dismissal of the case.

On Sept. 23, Judge John F. Walter, who is presiding over the Samathanam case, granted the motion to stay based on the papers, without oral argument, reasoning that this outcome was “appropriate because it would preserve judicial resources, impose no identifiable harm on Plaintiffs, and would avoid unnecessary burdens on Defendant.” Judge Walter did not rule on the motion to dismiss but rather set a scheduling conference for Dec. 30, 2019, and a hearing on the defendant’s motion to dismiss for Jan. 13, 2020.

Last week, Judge R. Gary Klausner notified Wickrematunge’s counsel that he too would be deciding the recent motions in that case on the pleadings. Klausner’s ruling remains forthcoming, but he may follow Judge Walter in granting a stay, in light of Sri Lankan elections. Or, he may rule on the motion to dismiss and also stay the case if Gotabaya wins his election. In either scenario, Klausner should not dismiss the case with prejudice if Gotabaya is elected, as it would likely be impossible to effectuate service again in the United States.

Challenging Gota’s Citizenship & Eligibility to Ascend to the Presidency

Meanwhile, in Sri Lanka, Gotabaya’s candidacy for president has itself been challenged in recent days, given dizzying developments involving his citizenship. Under Sri Lanka’s Constitution (Articles 91 and 92, as amended by Section 20 of the 19th Amendment), only candidates with exclusive Sri Lankan citizenship are eligible for the presidency.

News media have reported that Gota renounced Sri Lankan citizenship in 2003 in order to become a naturalized U.S. citizen. At the time, he was working in Loyola Law School’s IT department. When his brother was elected president in 2005, however, Gota returned to Sri Lanka and reportedly initiated the bureaucratic process required for applying for citizenship in Sri Lanka (see this article for some background). The application allegedly was granted by Gota’s brother, Mahinda, in the few days between when the latter stepped down as prime minister of Sri Lanka and then ascended to the presidency.

In a lawsuit brought in Sri Lankan courts, civil rights activists Chandragupta Thenuwara and Gamini Viyangoda have argued that Gota did not lawfully obtain his Sri Lankan citizenship because his certificate was technically executed by his brother during this brief interregnum. A three-judge panel of Sri Lanka’s Court of Appeals heard these claims last week and dismissed them on Oct. 4, clearing the path for Gota to continue his presidential bid (this opinion does not appear to be publicly available yet).

To add to the drama, earlier this year, Sri Lankan news reports suggested Gota had not officially renounced his U.S. citizenship in order to be eligible for the presidency. Indeed, Gotabaya was not included in the U.S. Treasury Department’s notice of individuals who had renounced U.S. citizenship as of June 30, 2019. To add to the confusion, a WhatsApp message containing what appeared to be a fraudulent certificate of renunciation was widely circulated across the country in August. These claims were not addressed as part of the recent litigation against Gota in Sri Lanka.

Should Gotabaya prevail in the election next month, justice may again be delayed for those journalists and civilians who suffered grave human rights violations under the Rajapaksa regime.

IMAGE: Supporters of former secretary to the ministry of defence and presidential candidate, Gotabaya Rajapaksa, celebrate outside Sri Lanka’s Court of Appeal in Colombo on October 4, 2019, after a petition challenging his Sri Lankan nationality was taken to court and then dismissed.  (Photo by LAKRUWAN WANNIARACHCHI/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).