How to Get Away with Murder: the Curious Case of Gotabaya Rajapaksa
The name of Rajapaksa evokes mixed responses in Sri Lanka. To many of the majority Sinhalese population, Mahinda Rajapaksa, the country’s leader from 2005-15, is the man who finally brought an end to decades of painful civil war with a sustained military campaign against the Liberation Tigers of Tamil Eelam, commonly known as the Tamil Tigers. To others, however, the name connotes ethnic polarisation for political reasons and repeated allegations of war crimes committed by the Sri Lankan military during the last stages of the war. These allegations emerged more substantially during the tenure of Maithripala Sirisena, Rajapaksa’s successor, but by the end of 2019 the Rajapaksa family were back in the spotlight. This time, however, it was Mahinda’s brother and former Defence Minister Gotabaya Rajapaksa who stood for-and won-the presidency. He wasted no time in appointing Mahinda as his prime minister, neatly curtailing Sirisena’s efforts to limit presidential power, and cementing the family’s hold on the strategically vital island nation.
Gotabaya Rajapaksa’s election has, however, thrown up some intriguing questions about his status. The new president has for a long time been implicated in many of the same war crimes as his brother, notably the infamous ‘white flag incident’, in which the Sri Lankan army summarily executed LTTE commanders and their families as they attempted to surrender. Two cases have now been filed in the USA against him, but the crucial factor to be decided is whether, as is often claimed, Rajapaksa is a naturalised US citizen. This stems from a period in the 1990s when he was resident in the US, working as an IT technician in Los Angeles. If this were the case, it would open the possibility of prosecution under US law.
The success of charges brought against Gotabaya Rajapaksa hinge on the interpretation of a controversial US law passed in 1789. The Alien Tort Statute allowed non-US citizens to bring proceedings against an individual or company violating not only US treaties, but any international provisions. More recent cases have led to limitations on the Statute, confining its jurisdiction to cases that ‘touch and concern’ the USA. The interpretation of this is a source of debate, and consequently it is under this provision, namely his US citizenship, that prosecutors hope to bring Rajapaksa to court. Rajapaksa claimed in April 2019 to have renounced his US citizenship, perceived as a barrier to his standing for the presidency. But the issue does not appear to be this clear-cut, with Rajapaksa only stating he had initiated the necessary procedures. Additionally, in November Sirisena’s Sports Minister alleged Rajapaksa’s name had not appeared in the US Federal Register, where the names of citizens who have revoked their citizenship must be published by law. The claim is refuted by Rajapaksa’s lawyers.
The first case was brought by the daughter of journalist Lasantha Wickrematunge, who was known for his criticism of the Mahinda Rajapaksa regime. Wickrematunge was assassinated in 2009 on his way to work, accusing the government of complicity in an editorial written shortly before his death, and to be released in the event of it. The second case, initially brought by Canadian Tamil Roy Samathanam but later also involving eleven further plaintiffs, accused the forces commanded by Gotabaya Rajapaksa of institutional human rights abuses involving various forms of torture. The defence, however, argued successfully to defer the case until the 2019 Presidential Election was concluded, then proceeding to invoke head of state immunity for Rajapaksa. The cases, therefore, look highly likely to fall short of their targets, Rajapaksa’s election victory negating any chance of prosecuting him for the time being. However, a key condition of the cases is also that the President’s US citizenship, whilst now at least in the process of being revoked, was not so at the time of the alleged incidents. There is, however, still some possibility of proceeding further. The debate on Rajapaksa’s US citizenship revocation has other consequences: in Sri Lanka, a sitting president cannot hold dual citizenship. If Rajapaksa is proved not to have completed the revocation by November
2019, when he was elected to office, there may be cause to declare his victory void. This in turn would remove the head of state immunity which currently provides the largest obstruction to the cases progressing. The question of ATS eligibility would re-emerge, a tangible connection to the USA at the time of the alleged crimes seemingly clear, though that connection would likely no longer exist by the time of any new developments.
Ultimately, the chances of a successful prosecution of Gotabaya Rajapaksa currently look no higher than they were for his brother, who similarly prevailed against allegations of war crimes via head of state immunity. Those charges, as well as those levelled against Gotabaya, will be far harder to pursue now the Rajapaksa family have a renewed, an arguably stronger, grip on power than in the 2000s. It seems that at the very least, both cases will be delayed as long as Rajapaksa remains president, and even after this there is no guarantee that, given the Rajapaksas’ stranglehold on Sri Lankan politics, pursuing them will be made any easier. It looks, therefore, like any sustained efforts to scrutinise the closing stages of the civil war will come to nothing. But it should be noted that Sri Lanka is a nation where swift political change is not uncommon: Mahinda Rajapaksa lost his own presidency despite widespread popularity in a surprise challenge by Sirisena, his former Health Minister. Whilst the Rajapaksa hold on power is for the time being secure, and with it immunity from prosecution, the winds of change have a tendency to dramatically and unpredictably switch direction in such a politically unstable and divided island.
Image courtesy of Russavia via Wikimedia, © 2014, some rights reserved.
