Prof. Ryan Goodman
By Ryan Goodman –
One Way Sri Lanka Can Shield its ex-Defence 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-Defence 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 Daily News:
“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.
*Ryan Goodman – Anne and Joel Ehrenkranz Professor of Law, Co-editor-in-chief, Just Security, Professor of Politics and Professor of Sociology – NYU School of Law.“One Way Sri Lanka Can Shield its ex-Defence Secretary from a U.S. Criminal Prosecution” by Rayan Goodman, originally published on JustSecurity.org on January 28, 2015.
Related posts;
Several Legal Avenues Available To Prosecute Gotabaya For War Crimes
Lasanda / January 30, 2015
Sinhalaya it’s time to wake up!!!!! Is this what we wished for a war hero????
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Off the Cuff / January 30, 2015
Dear Prof. Ryan Goodman,
You are right about the Extradition Treaty. You are also right about local prosecution.
However Evidence of a crime should be produced that would satisfy the Sri Lanka or US Governments as the case may be. The USA will not extradite to Sri Lanka the US Defense Secretary just because the Sri Lankan govt chooses to accuse him will of some vague crime will she?
Robert McNamara was the Secretary of Defense for John F. Kennedy while Lyndon B. Johnson was the Vice President during the Vietnam War.
Many war crimes were committed during that war including indiscriminate incineration of villages and forests. The use of Agent Orange was wide spread and indiscriminate.
But in this comment I am focusing on a PROVEN War Crime perpetrated by US Soldiers in Vietnam.
The Mai Lai Massacre killed 347 to 504 unarmed civilians in South Vietnam on March 16, 1968. It was committed by U.S. Army soldiers from the Company C of the 1st Battalion, 20th Infantry Regiment, 11th Brigade of the 23rd Infantry Division.
Victims included men, women, children, and infants. Some of the women were gang raped and their bodies mutilated. Twenty six soldiers were charged with criminal offenses, but only Lieutenant William Calley Jr., a platoon leader in C Company, was convicted. Found guilty of killing 22 villagers, he was originally given a life sentence, but served only three and a half years under house arrest.
Forgetting for a moment the obvious farcical nature of the inquiry and subsequent punishment it is interesting to note that those in command and those who had Command Responsibility reaching up to the Commander in Chief of the US forces escaped without a scratch.
Now what if that US precedent is followed in Sri Lanka?
Dear Prof. Ryan, Gotabaya R is detested for his autocratic and blunt ways. Yet he was at the Political Helm along with his brother President Mahinda Rajapaksa, of a successful War against Terrorist.
It was the combination of General Sarath Fonseka ably supported by the commanders of the Navy, Air Force and Police together with the political leadership that successfully eliminated the scourge of Terrorism from Lanka that this country suffered for 3 decades. The destruction of life and property in Lanka dwarfs what you suffered during 9/11. Hence unless blinded by hate for one reason or the other (corruption, lawlessness, loss of Prabahkaran etc) no citizen of Lanka can find fault with them for eliminating Terrorism from Lanka.
Hence you cannot stand on Moral or Legal grounds to extradite a person whose DIRECT involvement has not been proved.
Your country has set the precedent of not prosecuting those in the Command Chain (I have quoted only one of the many that are generally known).
The ONLY way to prosecute him is for the US to Flex her Muscle like it did in Pakistan without trying to hide behind the Law or Moral ground that do not exist.
While on the subject of War Crime prosecution I would like to bring the following to your notice.
Let’s first look at the International Law
http://www.icc-cpi.int/iccdocs/PIDS/publications/RomeStatutEng.pdf
Rome Statute of the ICC, 17 July 1998
Article 8
War crimes
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
The Key words in the above definition are “Presence”, “Civilians” and “Immune”
The meaning of course is very clear. Anyone holding Civilians to protect either, military forces (in this case LTTE cadres) or any area or any location from attacks is guilty of a serious War Crime.
Thus the use of Civilians as a shield is a war crime. Which of course is generally referred to as a Human Shield.
Now let’s look at what the POE report say
UNSG’s POE Report
237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)
The first thing that you notice is that the POE DOES NOT refer to the ICC Statute, which is the International Law. Instead they refer to a study made by the International Committee of the Red Cross (ICRC) which has no standing in Law.
The second thing that you notice is that the POE affirms the PRESENCE and FORCIBLE retention of Civilians in an Area where LTTE Cadres were present. They also affirm that LTTE shot and killed civilians who attempted to leave this area.
Though this is not the law, the POE refers to a Rule 97 of the Red Cross. But what they state is a perversion even of that.
ICRC Rule 97 does not require “MOVEMENT of Civilians” as the POE Fraudulently claims in section 237 in order to exonerate the LTTE of that war crime.
Here is ICRC rule 97
(https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule97)
Human Shields
Definition of human shields
The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations
Please note that even here “presence of civilians” to prevent military attacks on military targets is the criteria in deciding what consists a Human Shield. Thus the POE has intentionally deceived the UN and the World.
We know from photographic evidence published by the Times of London whose photographers overflew the NFZs (along with UNSG Mr Ban Ki Moon) that military equipment including heavy weapons were moved into the midst of civilians in the NFZ and used to attack the SL forces by the LTTE.
Thus we have a situation were Civilians were PRESENT and restrained within an Area were LTTE Cadres, LTTE Heavy Guns and LTTE Munitions were also moved and was being actively used to attack the SL Military. We also know from the POE report that the civilians who attempted to leave the area was shot by the LTTE.
Thus the conditions stipulated by the ICC regarding the Serious War Crime of employing a Human Shield is satisfied.
However very surprisingly the UNSG’s POE in EXONERATING the LTTE says the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime
Obviously Mr. Darusman, Ms. Yasmin Sooka and Mr. Steven Ratner has had a very strong incentive to SUBVERT and IGNORE International Law by declaring that the LTTE was not Guilty of the war crime of using a Human Shield despite overwhelming evidence to the contrary.
This is just ONE instance of their dishonesty. Others exist within their report.
Since you have posted this on CT you will obviously read the comments.
Hence your considered opinion is solicited.
Kind Regards,
OTC
PS. I thought that I had posted this earlier. Perhaps I may have made an error in posting.
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Aia / January 30, 2015
OTC
A simple answer is that the Defense Secretary of the USA is not a dual citizen of Sri Lanka. Other contrast if I can make, that is Gotta was alleged to have committed of crimes of killing his own citizen and, if this happened in the USA, that their Sec kills or order to kill its own people then there is no need for SL to seek extradition of him. The US legal system would take care of him.
Rather than looking at the issues at hand in its own merits, you went on to lecture the Prof explaining as if what SL did was is nothing compared to what the USA did in Vietnam. Even what you are writing is true, in effect, what you are trying is, is an attempt to square two wrongs. It doesn’t give justice to the affected.
The prof was only trying to explain the legal avenues of prosecuting Gotta, in doing so, he kind of providing some hints as to how Gotta could avoid an extradition using double jeopardy by submitting himself for a full blown investigation to the SL judiciary. Will he?. In SL, no matter how many crimes you commit, end of the day, if you bash the minority you automatically elevated to a hero status. Gnanasara had almost made it to it, alas if not for MR’s stupid crazy thinking that led him calling the Prez election 2 years in advance. Those two years would have been more than enough for Gnana to calling the shots. Don’t you think?. Now, while MR is licking his wounds, Gotta is keep guessing if I did a Basil, will UN take in charge of me, if not, am I safe … no ..bloody…the USA coming after me?
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Point of View / January 30, 2015
You cannot kill your own – this is what most of them do not understand.
Without any fear he gave orders to open fire in Rathupaswela. Killing a Sinhala Buddhist.
We should keep the US option open, in case he tries monkey business in SL using his contacts in the armed forces.
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Double standards / January 31, 2015
brilliant. who the hell is ryan gooman?
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Javi. / January 31, 2015
it means business as usual- faulty towers get that butt out of the way >T>F>Out double trouble will trip you bandy uuuuro!
Cold head werewolf mahawamse.
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Anpu / January 31, 2015
“who the hell is ryan gooman?”
Ryan Goodman – Professor of Law, Co-editor-in-chief, Just Security, Professor of Politics and Professor of Sociology – NYU School of Law.
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pakus petty / January 30, 2015
War hero? My foot. War heros don’t murder innocent 10 year old boys. Hothambaya was a murderer.
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Don Stanley / January 30, 2015
Gotabaya the biggest GREASE YAKA organized the Grease Yaka Panic to militarize Lanka after the war in 2011. Today he is trying to destabilize the regime and country by using military men to attack military camps and throw stones in the north.
Question is: Why is GOta not locked up pending trial because he is a danger to Democracy and good governance in Sri Lanka?!
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Aia / January 31, 2015
And, did he let go GREASE YAKA on LTTE, no the destitute that have had faced the brunt of the war and just escaped the war crime by pure luck, which this manic didn’t see for his liking.
Would Hitler do this for his own people, never. This is where lies this guy’s moral bankruptcy, perhaps, the Sweden writer characterizing Gotta’s character has got it right. But the majority in our country didn’t see him that way, why?
Failure to identify him was is the result of many things we saw that succeeded after the war. His view of the world is different and he was able to bungled the judiciary, working behind the scene to impeach the CJ, for just transferring a magistrate- one his lackeys. Now, the cases our versatile Mohan gave verdicts for, for the last 2 years have the potential to open up- interesting time ahead, if his position was or made null and void, so were his verdicts, may be a question for legal eagles. SL didn’t have a CJ, courtesy of Gotta, full credit for him. Did he allow free media, journalists who fled the country would testify it.
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sach / January 30, 2015
dont worry…we’l take care
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Snowden Edward Asange / January 30, 2015
War hero? or a ZERO? he was NOT the one who won the war.. SF did.. Modaya
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Karma / January 31, 2015
You idiot, wake up from Coma! A true hero is someone who thinks big for the country not someone who a) is war criminal b) invented “White Van” c) researched on “how to plunder more for his family dynasty” d)incited violence against minorities to always keep a “tensed” situation to shield his war crimes.
Go get a new life – but please not as a Sinhalese or Buddhist – you low life.
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Ranjan / January 30, 2015
It is widely believed this man Gota has mental issues and a threat to the stability of the already fragile society in the island.
This man’s racist authoritarian attitude is directly responsible for the deaths of thousands of innocent lives whose final moments are too brutal to be written in words. He needs to be held accountable atleast for the sake of children who have become orphaned and women who have become widowed in their thousands, all due to his racist bigotry attitude.
Leave alone the Tamils, his laughter that followed when questioned about Lasantha and the white van culture, clearly shows he is a sadist and a serial killer and needs to be punished.
By denying to extradite Gota to US for trial on war crimes, my3 administration run by UNP not only endorse his actions but also send a clear message to Tamils and Muslims that such crimes can be committed in the future against them and the perpetrator will go unpunished. So much so for reconciliation, rule of law and equality.
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sach / January 30, 2015
Ranjan the known LTTEer is caring for the stability of SL….oh what the world has come to? LOL
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Matilda Ellepola / January 30, 2015
Totally agree, this psychopath has tobe send to the Hague or Welikada to spend the rest of his life peacefully.
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Amarasiri / January 30, 2015
Ryan Goodman
“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,”
So, was Eichmann, and others.
Not if they are plucked or kidnapped, like KP from Malaysia.
He can always hide inside a White Van. How many white vans are thre?
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Ranjan / January 30, 2015
Now all the keyboard warriors will be in full swing trying to portray this psychopath Gota as a “war hero”. A hero who ordered to bomb a tiny densely populated area with Multi Barrel Rockets and MiG27s.
They justify and blame LTTE for holding the civilians as hostage, the irony is most of these civilians reject that argument and in many interviews to foreign channels have blamed the Sl Army for the killings.
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sach / January 30, 2015
yeah yeah the video evidence UNHRC reports and even ICRC reports of how LTTE kept a human shield….
Face the reality LTTE HID BEHIND WOMEN
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Ranjan / January 30, 2015
Oh how convenient quote UNHRC when it suits you.
Irony is non of these women say so, if it’s the opposite shouldn’t these women protest in large numbers against the LTTE? Whether you like it or not there was no hostage situation, it was nothing but a propaganda like zero civilian casualty. Lol..
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sach / January 30, 2015
Is that why UAV captured LTTE guarding civilians like sheep with a gun? There are witnesses and they were recorded.
There are pictures of LTTE guns being positioned among civilians.
Your pussy hid behind women and died in a panty
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Javi. / January 30, 2015
Such &Sach the Sachet,Boo’ts of white van experience.
Chameleons don’t need their parents help to come out of the egg and blend with the colour of environment.- not all but most.
Sach is the ex_pert & wants to be noticed.
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NAK / January 30, 2015
What is wrong in using multi barrols,remeber sun goat was undefeatable!!!
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Javi. / January 30, 2015
There goes a can full of people-
soylent green for the sihala rump buddhist foxes.
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su siri / January 30, 2015
I for one cannot wait for the day that the US extradition agreement is activated! Because….after all in Srilanka emotional tantrums generally override the sense of justice, commitment to justice and sane thinking, especially in the case of politics….sadly. Therefore I am not holding my breath about a fair outcome in an internal probe.
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Abhaya / January 30, 2015
good luck with that [Edited out]
cheers
Abhaya
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Saman / January 30, 2015
Gotabaya must be brought to justice and incarcerated.
Even though he was a defence secretary, General Sarath Fonseka and other commanders along with respective soldiers eradicated terrorism.
Unfortunately Rajapaksa family stole the credit and one of the idiots has written a book about War as “Gota’s War”
It is ridiculous.
What Gotabaya did is stole money along with his brothers and intimidated three forces.
Gotabaya definitely must be brought to justice and put him in a jail for his life.
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Burt / January 30, 2015
But the first issue is does GR still hold USA citizenship. If he gives it up now can he be charged for accused crimes while he was a US citizen?
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Snowden Edward Asange / January 30, 2015
Things happened while he was holding US citizenship, now he cant throw it away and be a saint. HE WILL be prosecuted by the USA IF SL doesnt… when one throws a ball to the wall it comes back twice as hard…. now its pay back time…. for GOATa
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Park / January 30, 2015
Gotha or for that matter any other person who has to be brought before an inquiry and subsequently for punishment, should be done by Sri Lankans in Sri Lanka. The main reason for this is the acceptance of the verdict or decision of the investigation by the masses in Sri Lanka.If they are investigated and subsequently punished outside Sri Lanka there will be no peace between various communities in Sri Lanka and that should not happen especially after the election of Maithripala Sirisena.
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vis8 / January 30, 2015
So, “Professor”…. I wonder why you take such an intense interest in pursuing this. So your “company” justsecurity is funded by the ltte terrorists who have fled Sri Lanka to your shores, eh?
How about “writing” about prosecuting the Bushes and Obamas for their war crimes in the Mid East?
-Mind your own business pal: or are you minding your ‘justsecurity’ business? (LMAO)..
Anyways, you and your hallucinating tamil expatriate terrorist friends can bark all you like. Sri Lanka cannot be touched by you hypocrite morons. Go get a life, pal!
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vis8dd / January 30, 2015
So, “Professor”…. I wonder why you take such an intense interest in pursuing this. So your “company” justsecurity is funded by the ltte terrorists who have fled Sri Lanka to your shores, eh?
How about “writing” about prosecuting the Bushes and Obamas for their war crimes in the Mid East?
-Mind your own business pal: or are you minding your ‘justsecurity’ business.
Anyways, you and your hallucinating tamil expatriate terrorist friends can bark all you like. Sri Lanka cannot be touched by you hypocrite morons. Go get a life, pal!
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neil munaweera / January 30, 2015
Gotabaya is the only one who believed in, and defeated one of the most ruthless terrorist organization in the world. Other countries taht include US hide behind war crimes by explaining it as co lateral damage. Who is going to prosecute them?
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Native Vedda / January 30, 2015
When push comes to shove Hindia will be on his side. Gota can seek safe sanctuary in Bihar. Gota did what Hindia wanted him to do.
The great revolutionary and public Hindia hater Somawansa took a Kallathoni back to his ancestral home with Gota in hot pursuit. In case if Gota wants to travel to Bihar all he has to do is get help from Somawansa.
If indeed the USA is serious about war criminals it has many ways of dealing with them. On the other hand Gota is a adopted son of Sam.
Many well informed people are perturbed about the fact that how did Gota manage to successfully obtain a visa to the USA soon after obliterating JVP in the early 1990s. Matale pit might have given him an added advantage over others.
Surely US immigration department would have given him additional points for his career achievements.
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Javi. / January 31, 2015
Rajapakse familial the mercenaries of Lankan history backed by American Shills ; Commenwealth Belfast Chancelor Shill sharma stiched up Sam to the familal thereforeHMS ignored him at the games- hey but thats not enough yankees never even got up when London was blitzed Shold we ED for fixing Obama for failing us by letting his Shills call the shots. no he’s got capable south Indian to guide than his bihari/ stupid UP. Greenspan vs Madya Predsh Raju who won man from 2005?? Inside Story
Jai Mata Jai.
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Javi. / January 30, 2015
Ryan Goodman,
Please read the case of Lankas first skyjacker Sepala Ekanayaka of Alitalia also from HumBugtota.
The president JR cheered and Sepala was given 5 star hotel intercontinental with his ransom loot. Till JR was pushed but then you cannot forget the lefties out for a fight- the best of lawyers (later new constution minister) Colvin R De Silva defended him and today the man is a happy Jeep dealer (Sepala was involved in the first prison riots during JVP insurrection and slaughtered 35 Tamil’s being held on suspicion).
You know the case of Mathew Martoma,(he was a crook) but what about his white boss who minted??
The case of Musharaff the coup master who abused bLiar and finally london giving him exile costing london tax payer £1 million per month for 2 years.
What is truth?? What pays the Yankees best (you bugged Merkel too as if Germany has no tech. that you nick) Mr. Obama told CNN: “Sometimes, we have to balance our need to speak [to the Saudis] about human rights issues with immediate concerns that we have in terms of countering terrorism or dealing with regional stability.”
If you press then the folk would vote Passa back at the next elections and Goo’ta Boots is safe.
Or He could easily move to Russia like the Greeks even with 2 american bases there to protect your interest but never EU.
Your Aid is totally military related as per Bush to Sir Paul McCarthy.
You are 200 year civilisation and Lankians are 500 year spin under European rule- they spin you war criminals.
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Jango / January 30, 2015
There is also the problem for Goata (and Basil) with regard to the IRS investigating his income tax returns against his assets in the USA.
When it rains it pours!!
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aratai / January 30, 2015
.
WHO ORDERED THE KILLING OF VP’S 10 YEAR OLD SON?
The good soldiers of Srilankan army treated the child very well by giving him snacks. But someone gave the order to go ahead and kill the innocent child.
:-)
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Javi. / January 30, 2015
he did what his father refused to do and forced others or shot their loved ones- `hole in one`fatty toddy tapper (JT)jaguar tiger all 4 legged.
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Kettikaran / January 30, 2015
Dear Prof. Goodman,
It is not that the Sirisena Administration does not savour seeing Gothabaya Rajapakse behind bars in the US, Hague or wherever lawfully relevant. I believe they’d love to see the man, widely believed to be mental and responsible for many grave crimes against civilians in the past 6 years, put away. The problem is the demented political culture in the country where the recent 3 decades armed conflict is viewed in terms of the continuation of the ancient Sinhala-Tamil battle for conquest. The Sinhala mind-set, particularly in recent times, is engineered to centre on this delusional factor. This is further confounded by the imaginary Sinhala fear of being a minority race in the region – where crafty Sinhala politicians add the Tamil population of Tamilnadu (abt. 66 million) and the (abt.3 million) Lankan Tamils and complain of being in danger of an unlikely scenario of the fear of genocide. That in the modern world governed by the Charter of the UN. Even an imbecile knows Tamilnadu is in a different country and the comparison can only originate from brain-damaged mental faculties – to be charitable.
Our PM Ranil W adds to the confusion hoarsely boasting no Sri Lankan can be charged in the Hague because he refused to sign the Rome Treaty.
The man, quite rightly referred to as a serial loser – meaning he often miscalculates, probably would have suffered the feared fate of Sirisena and his entire family if the alleged coup by the Rajapakses in the early morning hours of January 09 saw the light of day.
In the nature of the warped political culture here, if the Sirisena team campaigned for the January 08 Presidential Elections on the basis
the Rajapakses will have to face the wrath of the UN against charges of War and HR Crimes for the May 2009 events, there is little doubt
Sirisena would have lost the plot. Resultingly, the Sirisena team, quite rightly methinks, chose to be pragmatic in earthly terms and chose not to tread on this hot-potato. They won as a result.
But, then dear Professor, this is Lankan politics. It does not work to a set and rational sequence of thinking and events. Remember, we are proud beneficiaries of 2,500 years of admirable culture and stupendous learning.
Kettikaran
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sach / January 30, 2015
K now if the Sinhala people view the terrorism in an ancient SInhala-Tamil battle context, why did LTTE pick the TIGER as their emblem, the chola symbol?
Just a co incidence?
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Palmsquirrell / January 30, 2015
If they choose it because of Chola association then it was reciprocation.
Sinhalese choose the Lion to represent themselves and prominently display it on the national flag. LTTE was opposed to the Sinhala state and the SL flag is a symbol of this state.
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sach / January 30, 2015
So you mean tamils and LTTE were looking at that in an ancient Sinhala Tamil battle context. which i said earlier…
OK.
Then your logic had been you have been an indigenous tamil kingdom for 3000 years who are the real Bhumiputras :) so why pick a symbol of a foreigner?
Doesnt this 3000 year old tamil civilisation have anything to symbolise them? pretty poor i must say for a 3000 year run…
Are you saying Tamils came to SL as invaders and in other way Mahavamsa is true?
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Double standards / January 31, 2015
poor ltte cannot escape Sinhala – even “eelam” means Hela i.e Sinhala- even their land is called ‘Sinhala” :)
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Palmsquirrell / January 31, 2015
Your Sinhala language has its roots in South Western Russia but you Sinhalese do not look like the Eurasian steppe invaders that brought the Indo-Aryan language to the Indian Subcontinent. You are Indian natives who lost their mother tongue.
Tamils have retained our indigenous non Aryan identity. We never gave up our identity, heritage and roots . You can compare us to Mayans in Mexico who despite hundreds of years of European cultural imperialism still steadfastly identify with their indigenous roots. Unlike Mayans we have resisted cultural imperialism for thousands of years.
Lastly, your Sinhala language and all Indo-Aryan languages would not exist as we know it if it were not for Dravidian / Proto-Dravidian linguistic contribution. Dravidian changed the grammatical structure of Sanskrit and Indo-Aryan soo much soo that it differs significantly from other Iranic and Indo-European languages. Yet the impact on Dravidian by Sanskrit is far less, because it is limited to lexical borrowing.
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Palmsquirrell / January 31, 2015
Sinhala Nationalists saw the anti Tamil pogroms and discrimination as an extension of ancient Sinhala-Tamil wars.
There was an article here some years back about how soon after independence from the British, the SL Army named some of their battalion after Sinhala Kings who were specifically famous for fighting Tamils.
So the use of the Tiger , if it indeed was primarily motivated by Chola symbolism, was reciprocation for the Sinhala Nationalist sentiment.
Where have I mentioned anything about Tamils being indigenous?You just made that up.
Tamils almost surely were in Lanka before Sinhalese because the later are reputed to have colonized Lanka about 2500 B.P. South India by that time already had well established Dravidian societies . Since the distance between Southern India and Jaffna is soo tiny, Tamil fisher folk would have landed in Lanka before Sinhalese. Tamils though would not have colonized the Island and created Kingdoms. There just would have been small fishing communities in the Northern areas.
Tamils don’t claim to be indigenous to Lanka, we are well aware the Veddah were the first people to inhabit Lanka. Veddah are also indigenous to the Indian mainland just like Dravidians.
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ali baba sabry / January 30, 2015
The once powerful Hothambaya must be shivering in his pants now, Aney Paww.
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sarandeebiyy / January 30, 2015
Eek! If we don’t watch out, the US may be ready to invade! Remember what happened when Afghanistan refused to hand over Osama Bin Laden without proof!
And the roads and railway lines are in prime condition to move troops wherever they need to be stationed! The US did a thorough helicopter survey soon after the tsunami, so those video reels may have already been deployed in planning their strategy!
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BBS Rep / January 30, 2015
What if GOTA relinquishes his US citizenship? Being a dual citizen his Sri Lankan citizenship will not be jeopardised.
Can the US come and drag him screaming and persist that he is a US citizen despite GOTA insisting that he relinquished his US citizenship. Or can the US still take him away and put him in Guantanamo, where non US citizens are held with very little judicial protection.
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srilal / January 30, 2015
“What if GOTA relinquishes his US citizenship? Being a dual citizen his Sri Lankan citizenship will not be jeopardised. “
Once you become a US citizen , then you are liable to excising US laws , even he relinquished it now , it doesn’t mean his previous crimes would erased . US Government has the right to demand to extradite one of his citizens back to US.
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Javi. / January 30, 2015
then ,let the Drones begin!
Andele Arriva!
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Snowden Edward Asange / January 30, 2015
IF SL has an extradition treaty, GOATa could be extradited to the US
1. For and lying filing improper taxes.(one is supposed to report bank accounts with over US$50,000. which I bet Goata didn’t furnish)
2. If a case is filed in a US court for crimes against Humanity .. He has More than one case to prove he is innocent.. white vanning, Matale case, Rathpusella to name a few)
3. Money laundering.. How he managed to take so much money from SL to USA for buying off those properties…( his wife too could be prosecuted)
4. Planning and plotting an attempted Army coup …immediately after the Elections
5. Atrocities committed against Muslims, Christians and Tamils by backing a Terrorist organization…..arming, funding, inciting murder, torching up of properties….namely the BBS
……..and more
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Snowden Edward Asange / January 30, 2015
US should take the initiative and seize ALL properties of his Kith and Kin in the US and all OFF SHORE accounts and properties… put him on the dock, prove him guilty, throw him in jail and rightly let SL govt to dispose of such properties and transfer ALL the monies to the Central Bank of SL so that the monies that are rightly belonging to the citizenry of SL is put to better use and for the benefit of the country..
This ARROGANT ASS ( look at the Photo) did not expect a day would dawn, when his wings would be clipped… He may be in SL but would be shitting in his pants at the thought of SF taking revenge…( a reason MR asked RW for the safe passage of him and GOATa after conceding loss after the election)
Karma is a B**** and its payback time..
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Wickramasiri / January 30, 2015
Sri Lanka’s difficulty is not merely to go ahead and institute a domestic enquiry, but how can such an enquiry be undertaken without destabilizing the country. The majority Sinhala people are bound to come out to the streets in violent protest.
There is also a well founded issue of credibility as far as UN investigations go. The question often asked is why Former U.S. President George Bush Jr, Dick Chaney, Tony Blair and others have not been prosecuted for the crimes against the people of Iraq where over a million people have died during and post war periods. Why has Israel been spared? Is it a case of American ‘exceptionalism’ being more powerful than the UN?
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Native Vedda / January 30, 2015
Wickramasiri
“Why has Israel been spared? Is it a case of American ‘exceptionalism’ being more powerful than the UN?”
The so called powerful countries get away from murder. Therefore its an excuse for us not to have an independent credible investigation.
“The majority Sinhala people are bound to come out to the streets in violent protest. “
The Sinhala/Buddhists need no excuse to come out to the streets, they do it anyway. They could only kill minorities, burn their houses and businesses, rape and loot. Does it matter?
On the one hand the leadership is unable or unwilling to conduct a thorough and credible investigation on the other they fear the UN.
One cannot have the cake and eat it.
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sach / January 30, 2015
Do you really think this arrogant [Edited out] cares two hoots about people dieing in SL streets?
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crazyoldmansl / January 30, 2015
U muz be a dreamin proff!! Sri Lankans LOVE this guy! They admire his “GUTS” – you know that anal sadistic typology that shows through very clearly when ever he gets annoyed?
They aint never going to prostitute him man. You musta be crazy. He is a national hero you see like that hill fellow the curch. Sri Lankans love the anal sadistic types. They do not like the the anal masochists like gandi the great.
So you gonna have to get your man if you want to – but then do you really want to? After all you will all too soon need him to engineer another regime change when this one gets to the sri lankan default position which is to sit around on its ass harping on its past until an increasing population leads to the next massacre.
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ramona therese fernando / January 30, 2015
Professor,
This is Sri Lanka, and not the Middle East. However much you may try to instigate our government against our heros, you will only suceed in creating a greater network of solidarity and allegiance for those who freed us from terrorism. We will prevail in ways incomprehensible to you, and we will protect our way of life and honor from alien and uncomely interference, such that it will make you wonder and reflect on your own acts of dishonor.
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crazyoldmansl / January 30, 2015
See professore man I told you no? Vee love our murderers and white van operators and this our greatest fellow – have you seen him on TV gasping for breath with spittle spewing out of his mouth as he shouts “This is a sovereign nation!!”
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Snowden Edward Asange / January 30, 2015
but you live in USA and pretend to be from SL..whatever the case may be..he is right about how to prosecute gota.. lol @ OUR GOVT AND HERO’S… MR AND GOTA ARE WAR CRIMINALS NOT HERO’S …. ONLY HERO IS SF.. WHO WAS DEPRIVED OF HIS DUE PLACE…NOW ALL GOTAS MEDALS MUST BE WITHDRAWN.. his retirement and perks should be taken away too.
HE SHOULD BE NAILED !
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Off the Cuff / January 30, 2015
Dear Prof. Ryan Goodman,
You are right about the Extradition Treaty. You are also right about local prosecution.
However Evidence of a crime should be produced that would satisfy the Sri Lanka or US Governments as the case may be. The USA will not extradite to Sri Lanka the US Defense Secretary just because the Sri Lankan govt chooses to accuse him will of some vague crime will she?
Robert McNamara was the Secretary of Defense for John F. Kennedy while Lyndon B. Johnson was the Vice President during the Vietnam War.
Many war crimes were committed during that war including indiscriminate incineration of villages and forests. The use of Agent Orange was wide spread and indiscriminate.
But in this comment I am focusing on a PROVEN War Crime perpetrated by US Soldiers in Vietnam.
The Mai Lai Massacre killed 347 to 504 unarmed civilians in South Vietnam on March 16, 1968. It was committed by U.S. Army soldiers from the Company C of the 1st Battalion, 20th Infantry Regiment, 11th Brigade of the 23rd Infantry Division.
Victims included men, women, children, and infants. Some of the women were gang raped and their bodies mutilated. Twenty six soldiers were charged with criminal offenses, but only Lieutenant William Calley Jr., a platoon leader in C Company, was convicted. Found guilty of killing 22 villagers, he was originally given a life sentence, but served only three and a half years under house arrest.
Forgetting for a moment the obvious farcical nature of the inquiry and subsequent punishment it is interesting to note that those in command and those who had Command Responsibility reaching up to the Commander in Chief of the US forces escaped without a scratch.
Now what if that US precedent is followed in Sri Lanka?
Dear Prof. Ryan, Gotabaya R is detested for his autocratic and blunt ways. Yet he was at the Political Helm along with his brother President Mahinda Rajapaksa, of a successful War against Terrorist.
It was the combination of General Sarath Fonseka ably supported by the commanders of the Navy, Air Force and Police together with the political leadership that successfully eliminated the scourge of Terrorism from Lanka that this country suffered for 3 decades. The destruction of life and property in Lanka dwarfs what you suffered during 9/11. Hence unless blinded by hate for one reason or the other (corruption, lawlessness, loss of Prabahkaran etc) no citizen of Lanka can find fault with them for eliminating Terrorism from Lanka.
Hence you cannot stand on Moral or Legal grounds to extradite a person whose DIRECT involvement has not been proved.
Your country has set the precedent of not prosecuting those in the Command Chain (I have quoted only one of the many that are generally known).
The ONLY way to prosecute him is for the US to Flex her Muscle like it did in Pakistan without trying to hide behind the Law or Moral ground that do not exist.
While on the subject of War Crime prosecution I would like to bring the following to your notice.
Let’s first look at the International Law
http://www.icc-cpi.int/iccdocs/PIDS/publications/RomeStatutEng.pdf
Rome Statute of the ICC, 17 July 1998
Article 8
War crimes
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
The Key words in the above definition are “Presence”, “Civilians” and “Immune”
The meaning of course is very clear. Anyone holding Civilians to protect either, military forces (in this case LTTE cadres) or any area or any location from attacks is guilty of a serious War Crime.
Thus the use of Civilians as a shield is a war crime. Which of course is generally referred to as a Human Shield.
Now let’s look at what the POE report say
UNSG’s POE Report
237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)
The first thing that you notice is that the POE DOES NOT refer to the ICC Statute, which is the International Law. Instead they refer to a study made by the International Committee of the Red Cross (ICRC) which has no standing in Law.
The second thing that you notice is that the POE affirms the PRESENCE and FORCIBLE retention of Civilians in an Area where LTTE Cadres were present. They also affirm that LTTE shot and killed civilians who attempted to leave this area.
Though this is not the law, the POE refers to a Rule 97 of the Red Cross. But what they state is a perversion even of that.
ICRC Rule 97 does not require “MOVEMENT of Civilians” as the POE Fraudulently claims in section 237 in order to exonerate the LTTE of that war crime.
Here is ICRC rule 97
(https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule97)
Human Shields
Definition of human shields
The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations
Please note that even here “presence of civilians” to prevent military attacks on military targets is the criteria in deciding what consists a Human Shield. Thus the POE has intentionally deceived the UN and the World.
We know from photographic evidence published by the Times of London whose photographers overflew the NFZs (along with UNSG Mr Ban Ki Moon) that military equipment including heavy weapons were moved into the midst of civilians in the NFZ and used to attack the SL forces by the LTTE.
Thus we have a situation were Civilians were PRESENT and restrained within an Area were LTTE Cadres, LTTE Heavy Guns and LTTE Munitions were also moved and was being actively used to attack the SL Military. We also know from the POE report that the civilians who attempted to leave the area was shot by the LTTE.
Thus the conditions stipulated by the ICC regarding the Serious War Crime of employing a Human Shield is satisfied.
However very surprisingly the UNSG’s POE in EXONERATING the LTTE says the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime
Obviously Mr. Darusman, Ms. Yasmin Sooka and Mr. Steven Ratner has had a very strong incentive to SUBVERT and IGNORE International Law by declaring that the LTTE was not Guilty of the war crime of using a Human Shield despite overwhelming evidence to the contrary.
This is just ONE instance of their dishonesty. Others exist within their report.
Since you have posted this on CT you will obviously read the comments.
Hence your considered opinion is solicited.
Kind Regards,
OTC
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Lasanda / January 30, 2015
Sinhalaya it’s time to wake up….. Is this the way we wanted a war hero to be treated??????
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Native Vedda / January 30, 2015
Lasanda
Is he a war hero or a war criminal. Let the domestic and international law take its course. Then again domestic law well ………..
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sach / January 30, 2015
is this ryan fello talking about Dick Cheney
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anonymous / January 30, 2015
Spot On man. Bush Jr., Cheney, Rumsweld & Gen. Colin Powell (who was not in agreement but doing his duty as a soldier) = Mahinda, Gotabhaya, Basil & Gen. Sarath Fonseka (not in agreement)
You and I should get together sometime in the future Sach, as we are on the same frequency.
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vis8 / January 30, 2015
Well said! Thei “Good”man is just trying to hype his ‘security business’…… HE does not have balls to “write” articles on BUsh, Cheney, Obama and the drones…..
Best ignore cheap shit like this :)
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Aku / January 30, 2015
Gotaya is NO War Hero!!! He jailed the REAL War Hero!!! This News, to me is simply awesome.. the man is now stuck, “can travel but can’t”… This is Justice!! Very well done…
On another note – the former Govt gave out many guns, some were licensed and some not, truly hope all the taken back immediately too.
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Siva Sankaran Sarma / January 30, 2015
This joker has been rehashing the same nonsense in his articles for years now. No one seems to pay any attention – but it’s nice fodder for We Thamizh donkeys :D
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Palmsquirrell / January 30, 2015
Oh look the Sinhala masquerading as non Sinhalese is back. You were very quiet when your boy MaRa lost.
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Siva Sankaran Sarma / January 31, 2015
Oh look a We Thamizh donkey has donned the hat :D We’re not all as fortunate as you to be spending 24×7 here – some of us have actual lives you know :D
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Palmsquirrell / January 31, 2015
I was on hiatus for over a year and returned back in December.
Who are you kidding; if you had a life, you wouldn’t try masquerading as someone else and you wouldn’t be using different aliases on different sites.
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