By Daya Gamage –

Daya Gamage

It was a known fact that Gotabaya Rajapaksa got a speedy and unfettered renunciation of his US citizenship having known his role in the handling of the Eelam War as defense secretary which was exposed to global criticism. It is also a known fact that some of those who led the ground battle during the offensive against the LTTE between August 2006 and May 2009 under Mr. Rajapaksa’s command, have been declared by the U.S. State Department as alleged war criminals barring their entry to the U.S., then commander of the army Gen. Sarath Fonseka and the incumbent commander Gen. Shavendra Silva to mention two. Washington was aware that it was under the direct command of Defense Secretary Rajapaksa these officials on the ground executing their duties.

It was also a fact that Washington was disappointed the manner in which the GSL ended the war, and in fact never wanted the LTTE totally defeated and annihilated when steps were taken to force a ceasefire and safely eject the leadership of the LTTE out of Sri Lanka. The foreign ministers of France and U.K. arrived in Sri Lanka to persuade President Mahinda Rajapaksa to enforce a ceasefire to which the president dismissed.

Disappointed with the outcome of the war, a classified diplomatic cable sent to Washington by the U.S. diplomatic mission in Colombo in December 2009, signed by Ambassador Butenis, declared the Rajapaksa brothers as war criminals. The Office of War Crimes of the U.S. Department of State released a report in December 2009 denouncing the manner in which the war was fought by Sri Lanka’s military leaders and their civilian counterparts.

Washington in 2018 was well aware that Gotabaya Rajapaksa was preparing to present himself as the presidential candidate the following year. Under the Nineteenth Amendment to the Constitution enacted by the Wickremesinghe-Sirisena administration dual citizens are barred from entering the presidential race as well as presenting themselves to contest parliamentary elections, to which Washington was fully knowledgeable.

It is under these background and scenario that Gotabaya Rajapaksa was preparing to submit papers to the American Embassy in Colombo to renounce his US citizenship in early 2019.

US law sets no time frame and leaves the investigative agencies to take their own time to furnish their report upon receiving citizenship renunciation applications. Provisions in the law could delayed the renunciation for years. The U.S. consular officers do not have the authority to approve the request for a Certificate of Loss of Nationality. The final decision is made by the Office of American Citizen Services and Crisis Management in the Directorate of Overseas Citizens Services, Bureau of Consular Affairs of the Department of State. It should be reiterated that relinquishments and renunciations are considered low priority cases.

In early 2019 this writer was ‘sounded’ that a fresh attempt may be in the pipeline to look into former Sri Lankan defense secretary Gotabaya Rajapaksa’s role during the Eelam War IV.

Washington already had in its possession the ‘war reports’ dispatched by its diplomatic mission in Colombo during the tenure (August 2006 through May 2009) of the battle when the Department of Homeland Security in October 2009 attempted to interview Gen. Sarath Fonseka, when in the US to renew his Permanent Residency Permit (Green Card), regarding Defense Secretary Rajapaksa’s role during the Eelam War. This attempt was strategically avoided. In the same month the State Department’s Office of Global Criminal Justice had submitted its ‘War Report’ to the US Congress accusing Sri Lanka of war crimes.

When Gotabaya Rajapaksa’s name emerged as a possible presidential candidate, Washington revisited, according to the sound bite received by this writer, its ‘Naturalized Citizen’s’ role as to how he managed, directed and ended the war as the defense secretary – not forgetting the assault on the freedom of speech – to link him to the US War Crimes Act of 1996.

The War Crimes Act of 1996 makes it a federal crime for any US national, whether military or civilian, that violates the Geneva Convention by engaging in murder, torture, or inhuman treatment.

The statute applies not only to those who carry out the acts, but also to those who order it, known about it, or fail to take steps to stop it.

The War Crimes Act has no statute of limitations, which means that a war crime complaint can be filed at any time.

Section 2401 of the Act states the offense as “whether inside or outside of the United States, commits a grave breach of the Geneva Conventions”, and “grave breach of the Geneva Conventions means conduct defined as a grave breach in any of the international conventions relating to the laws of warfare signed at Geneva 12 August 1949 or any protocol to any such convention, to which the United States is a party.”

As a citizen of the United States, Gotabaya Rajapaksa was directly liable under the War Crimes Act – a legal windfall for any US effort to investigate and prosecute him – if they so wished – across international borders. His citizenship also expands US policy space – by reducing US vulnerability to accusations of meddling if US goes after one of its own.

As noted above, US Ambassador Patricia A. Butenis had already cabled Washington that “responsibility for many of the alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers.”

The profile developed by Washington itself, based on direct reporting and classified ‘comments’ by its diplomatic mission in Colombo, and the ‘inputs’ by professional activists within the Tamil Diaspora, could have been – if Washington so wished – used by the Department of Homeland Security to fit into the War Crimes Act of 1996 to prolong the process of issuing the Certificate of Loss of Nationality.

It never happened.

How could have Washington prolonged the process of renunciation to frustrate Rajapaksa’s attempt to enter the presidential fray in Sri Lanka?

War crimes investigative responsibility rests with the US Department of Homeland Security (DHS). The Department of State provides DHS raw and analytical reports with recommendations on alleged war crimes and violation of international humanitarian law (IHL) it receives from worldwide US diplomatic missions.

The U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) of the DHS operates the Human Rights Violators and War Crimes Unit (HRVWCU) within the National Security Investigations Division (NSID).

The HRVWCU of the Department of Homeland Security conducts investigations focused on human rights violations and individuals who engage in the commission of war crimes, genocide, torture and other forms of serious human rights abuses from conflicts around the globe.

The Human Rights Violators and War Crimes Center also brings together various Department of Homeland Security components and other departmental agencies, to include the FBI and Department of Justice to work collaboratively on human rights violators at war crimes investigations.

The American Embassy in Colombo, on several occasions, rejected visa applications to a host of active duty and retired military personnel. Former army commander Gen. Sarath Fonseka’s visa application was rejected thrice, the last when he was to join Sri Lanka president Sirisena entourage to New York to attend the UN Session. This was the result of notifications from the US Department of Homeland Security if it takes things seriously. The U.S. does not grant entry to persons whom it believes committed human rights violations and war crimes. It is significant that those whose visa applications were rejected by the US Mission in Colombo were never found guilty of any crime although Washington believed, having reports in its possession, to the affirmative.

As much as Washington had the authority to deny visa applications for alleged violation of IHL or war crimes, it has the sole discretion of delaying the issuance of the Certificate of Loss of Nationality until the cumbersome process of the investigation involving many U.S. federal agencies is concluded. Mr. Rajapaksa’s application was never dragged nor rejected.

Washington knew, considering the prevailing political condition of Sri Lanka, Gotabaya Rajapaksa could win the presidency with ease. Also Rajapaksa, when he was defense secretary, signed the ACSA military agreement with the U.S. in 2007. With its military manoeuvres and strategies in the Indo-Pacific region, Washington undoubtedly expected Gotabaya Rajapaksa – as president – to facilitate its military expansion against the Chinese in agreeing to enter into military arrangements, the most vital Status of Forces Agreement (SOFA) Washington also expected President Rajapaksa to fully activate the 2017-signed 83-page ACSA. The Rajapaksa administration rejected Washington’s strategic ‘package’, the $480 million Millennium Challenge Corporation (MCC) Compact Agreement. All these are strategically important to Washington’s military endeavors in the Indo-Pacific region.

Under President Gotabaya Rajapaksa Washington expected Quid Pro Quo when renouncing his US citizenship – without any delay or investigations of his former role as defense secretary – for him to have an easy passage to contest and become president under the Nineteenth Amendment as a sole Sri Lankan citizen. There was no reason for Washington to facilitate Sri Lanka at UNHRC as the Quid Pro Quo was not kept by President Rajapaksa. The March 23, 2021 UNHRC outcome can be a challenge now when the Biden administration just last Friday decided the allow the International Criminal Court (ICC) officials to visit Washington to interview persons connected to US military efforts in Afghanistan and Iraq.