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
Rabok / January 30, 2015
If Gota is considered a war criminal – then Rudra/ Father …/ Adela and so many in tamil diaspora – who they are ??? the active support of all these guys funded the killing of many thousands of innocent Sri Lankans without any valid reason – why everybody now clamouring to crucify Gota are not talking about these crimes – For one thing majority of the normal citizen of this country do not consider GR as a war criminal and if this Gov. ignore the sensitivity of these folks – they are asking for big trouble
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Palayang Yako / January 30, 2015
Rabok:
Before you utter idiocies, why don’t you read what Goodman says and the U.S. laws he refers to? I don’t know where “Rudra” lives but the “Adela” you refer to is probably Adele Balasingham who is Australian-born and now domiciled in the UK and US law has nothing to do with her!
It is idiots like you who reduce any discussion of these issues to moronic levels!
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Javi. / January 30, 2015
everything can never be nonsence
everyone’s opponent is wrong! Socrates was honest but never wrong.
…..Julian Assange, …. australian born was living in the uk untill he hid at Ecuador embassy london- Ecuador the cheapest place on earth for retired Yankees.
wanted by the yankees still at the london embassy???
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Rabok / January 30, 2015
Aney Yako – In fact I am not referring to Goodman article but to the comments followed — many of them have already taken extadicted Gota to USA – why these idiots cannot think of the good things this fellow had done to the country – why should anybody argue about pros and cons of Gota facing American’s lopsided justice — only few paranoids idiots commenting here are day dreaming to crucify GR – I am 100% sure not the majority of this country – So do not go with those selfish idiots
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Javi. / January 31, 2015
Bada boku badda lokku,
Rabukanede?
Gooo`ta Boo`ta and you udran kanna pakshya –
Wanate still have the 2 ft pipe Ayebo unge ( funga safari)
From Sepala to the cave of humbug tota- gass gembo!
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JJ / February 1, 2015
Rabok – Hitler did some great things for post WW I Germany. Infrastructure to industrial strength. But at what cost? The Nuremberg trials was the exposure to the third reich’s nightmare. Gota is a psychopath. The BBC interview confirms this.
https://www.youtube.com/watch?v=k5LMco_Zcfg
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Javi. / February 1, 2015
Sihala Rump Buddhist Rabok,
All your founding fathers the cowards who hid at India had Catholic names likes yours – like Percy Rajapassa, Cyril Mathew the Monster,
from birth you `werewolf` never drunk milk like mainland Chinese `Weretigers`
Do you still want to retain Sinhala/Buddhist origin myth based on bestiality, parricide and incestuous relation?,
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Snowden Edward Asange / January 30, 2015
He sure is a criminal but not a WAR HERO.. that title belongs to SF and he will win hands down. This Megalomaniac used the power off his brother to good effect to deprive SF of his berets… and the Mo fo had the audacity to write a book.. gota’s war… my foot! If one can be stripped of medals.. same should be done to Gota and that book MUST be taken off the shelves….and burnt …
This moron was a COWARD who did NOT have the BALLS to stay and fight but FLEE to thE USA with the help of his Brother, who HAPPENED TO BE THE PRESIDENT OF SL… once the war was over, he walks sheepishly and tried to claim the title.. then became the most powerful person in SL until he was kicked in his butt my the MAJORITY of SRI-LANKANS…who know he was NOT the war hero..but a zero..
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srilal / January 30, 2015
“For one thing majority of the normal citizen of this country do not consider GR as a war criminal and if this Gov. ignore the sensitivity of these folks – they are asking for big trouble “
heh …. heh… this lunatic thinks majority of SL people thinks like him , yes he wants to portray a picture with a warning , “if you dare to touch my pay master , we would do the unthinkable ” , these sycophants still seem to be living in the old Rajapakse era , CBK , Rajitha and host of other guys collecting all the evidence to put an end to sort of nonsense , MY3 is fully aware , that there are so many of old “Germs” still fully functioning within the all the state machinery , have some some patience , he has already started vacuuming and sanitizing the place .
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Rabok / January 30, 2015
Sirilal – I am not guy living on GR”s charity – in fact I have never seen him even him physically – Professionally I am an qualified engineer living abroad most of the time – I do not care a damn about the comments from paranoid idiots like you who do not possess the mental capacity to differentiate logic from bullshit – it is unfortunate that this country is full of bulls and parrats like you – any Gov.will not be able to develop this country until they brainwash these idiots – However your comment on me will never ever stop myself talking the truth
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Javi. / January 31, 2015
Whom are you trying to reverse engineer from your fing aleman ghetto
Bihari Babuva.
Sri lal is presumably an accountant, and has more sense than all you perverts put together.
Dont talk shop when you have neither manufactured a universal joint.
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Rabok / January 31, 2015
Okay – now I understand – accountants – guys who cannot think beyond numbers – logic is something they really cannot fathom out – the other lot is economists -they also cannot think beyond their models – Are you one of them ????
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Javi. / January 31, 2015
what makes you think you are right and you are superior to our manufacture?? you dont even have the subjects all you can do is count your fingers isn’t it so with trade union membership Enginero??
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Javi. / January 31, 2015
CJ gets no home you scumbag of 60years you just get executed for being a mercenary- end game.
Sihala Rump buddhist,
Gass Gembo FROG – Just Trigger F***ing Ran Out Of Gas.
Do you still want to retain Sinhala/Buddhist origin myth based on bestiality, parricide and incestuous relation?
Where is Goo.ta Boo`ta the pipe song.
Hindustan Ki Jai
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srilal / January 31, 2015
Rabok .
you made me laugh mate , first , you claim yourself to be an Engineer , right ? if that the case , don’t you think you should have the minimum level of English Proficiency to carry out your professional duties in a foreign country ? re read your own comment and see how many basic English errors are there !
talking about your paranoid , who is getting paranoid here ? your super duper hero fled the country when the country was bleeding , guess what ? according to him , country’s political leadership wasn’t giving right leadership ! can any one imagine Gen Fonseka and other war heroes also uttering a such a baloney and fleeing the country , what would have been the story ? there are so many imbeciles who have nothing in their heads to think rationally except to repeat what they been told , don’t worry , there are about two to three million Grass eating two legged cattle species imbeciles like you wasting the space in SL , there is nothing much we can do about those low life scum bags except keep feeding “punnakku”.
true heroes are the one who stood behind and fought against all odds , they are the real heroes and not some phony card board heroes who rushed to take an undue advantage over a volatile situation , this so called
war hero was trying to give necessary leadership skills to Gen fonseka , in fact Gen Fonseka had found it from the begging , this man was continuously poking his bloody nose in to General’s terrain and the same time extremely annoying hence , in the end he had to get the message loud and clear , BACK OFF ! that’s how Gen Fonseka started marching towards the victory !
your knowledge about the war and the rest of the story is identical to “Mahinda’s version” or “Gota’s war” , buy that book and re read it half a dozen times more .
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Rabok / January 31, 2015
Okay I agree there are some typos – my big finger on the Tabs keyboard keeps on missing letters or typing wrong letters- but I hope you got the msg. clearly – because you seems to be really annoyed – and panting like a dog – calm down – you are missing my point – I have never said only GR and MR won the war – both of them played a significant role in the final victory – similarly SF and other Commanders and the foot solders also contributed- all of them should be treated equally as war heros – does not matter whether they are in or out of the Gov. – the problem is the idiots like you and some other commentors do not understand this – but keep on counting days until somebody crucify people who won the war for me and you also
Regarding my professionalism – I am quite satisfied with what I have achieved during my 35 years of service in Sri Lanka and abroad – I just mention my profession to convey the idiots that I am not a guy depending GR/MR’s goodwill for my bread – because if anybody says GR is a war hero – every donkey start commenting against – and never try to understand the facts –
For your information I have read almost every article and book written on SL war – including Gota’s war
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Javi. / January 31, 2015
Fall leaves after leaves fall.!
Reboka of` Goo`ta `Boo`ts BBS flubug…,
!How slime flies!
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Rabok / February 1, 2015
Idiot – it is of no use commenting on your comments – simply because you sounds a brainwashed LTTE goon – however I must clear one point – I am a Sinhalese and good Roman Catholic – So I do not have anything to do with BBS
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Javi. / February 1, 2015
“I am a Sinhalese and good Roman Catholic”(゜゜)～ (゜゜)～
Pedophile Stinker, I eat Cat-O-lics on Sundays,～゜・_・゜～
Hang Em High- all you (papal/robed/robins) mercenaries crusaders.
Happily Agnostic
(@_@)
ಠ_ಠ.
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Javi. / February 1, 2015
You come back broke, want to eat dirt cheap- why eat dirt?
Sinister Fascist ,
Brainwashed; Washed brain- when you pull the flush it goes down the drain!
That is how minorities got – Sunday sil monday kill…kill the veddha …. rob the buddha…. blame the suddha.
Brainwashed Enginero Go get Singapore Rohana the Convict to give you a list of Terrorist first please.
Also remember Tamil Sri Sri Sri future SC Judge USA, Tamil Dr Ragu Governor RBI. Many more in the pipe all Tamil- Brainwashed!!!! To Sihala Ego trip???
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srilal / January 31, 2015
Rabok ,
Country without a single Rajapakse is the best wish that we could dream for and that sweet dream had arrived , for that dream to become a reality we had put our lives on the hands of your super heroes “white van squad ” , thank to whoever might be those goons couldn’t touch us and we are still alive !
Please keep up your good reading habits intact , let me give you another little reading tip for you , try that pseudo terrorism expert Rohan G’s writing as well .
Good luck mate.
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Nero_Hero / January 31, 2015
If you prick us do we not bleed?
If you tickle us do we not laugh?
If you poison us do we not die?
And if you wrong us shall we not revenge?– Professor Shakespeare
Reason can Dream what Dreams can not Reason!
ʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘʘ
ʘʘʘʘʘʘʘʘʘʘʘʘʘʘ
ʘʘʘʘʘʘʘʘʘʘʘʘ
ʘʘʘʘʘʘʘʘʘ
ʘʘʘʘʘʘ
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NAK / January 30, 2015
Prof.Goodman,What seems to be the problem?are you short of war criminals to prosecute over there?
You have infact war criminals over there to prosecute for you whole life time,you can come looking for GR once you are done over there!
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vis8 / January 30, 2015
Well said, Sir!
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Native Vedda / February 2, 2015
NAK
“You have infact war criminals over there to prosecute for you whole life time,you can come looking for GR once you are done over there!”
Where was Gota before he committed the latest war crime?
Where was he before he went to USA?
How did two army men manage to get green card just after the obliteration of JVP? Accident or coincidence?
Don’t you think their men Gota was sent to this island to commit further war crimes?
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Rajan / January 30, 2015
One way or other they will get Gota.
Its just not only the US Government, the UN and the International commission of Jurists -all of whom have a mountain of evidence including photographs, eye witness accounts, aerial photos and testimonials from high ranking military officers.
It is in the interest of the International community to do this, in order to demonstrate their liberal credentials and to ensure those ‘war criminals’ now in govt are kept on a tight leash.
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Rabok / January 31, 2015
Rajan -Idiots like you still believe in US EU UN justice — why the heck they should worry – there main worry was MR’s Gov.and it’s over reliance on their enemies – they tried all avenues to toppel MR – but they failed – MR keep on showing them middle finger – unfortunately MR did not have vision to select a proper set of intelectuals to counter the onslaught on equal grounds – insTed he selected idiots like SaJin V and good for nothing set of ambassdors – to make the matters worst – unrelenting UN US EU war crime investigation demans – which was a result of false propaganda by dispora war criminals – and the uncooperative attitude of TNA completely alienate tamils with MR Gov.– now all that is history – there is a new Gov. and new hopes – but again some cows wants to pork finger into old wounds – if someone sounds different opinion these cows go mad – I have only one comment for all these selfish donkeys — GO TO HE’LL NOTHING WILL CHANGE THE TRUTH
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Javi. / January 31, 2015
Rabuk,Stinker, you had that icon picture taken away because no one gave you 2 hoots stinker??
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Rabok / January 31, 2015
I am enjoying your comments – please continue
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Javi. / January 31, 2015
Sihala rump buddhist
croak croak, shit bucket,
You are playing too much croquet!
So you are broke, to come back to stay cheap, being a BBS mercenary??
Why do you make tea in your pyjamas did the bitch pinch you??
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Jim softy / January 30, 2015
It is United States, which seek help from that same man for their Afghan war.
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Javi. / January 31, 2015
Jimass,
your head is cold by nature, its your freek civilisation, Why so?
Can you wear an afgans boots or speak Pashto?
Only cave man Xi’s boots with yankee approval threads therefor saffron and gas.
Keep the Fu** Off you have no undies to boast of even at dabule.
concentrate on thread or vamoos to next please old ham.- smelly bacon.
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Pakis Pettiya / January 31, 2015
Worrisome because SF and GR were hand in hand in a lot of the last minute dispensation of frontier justice. It had to be done that way the way US took care of Bin laden the Jihadi Islamist or how UNP dealt with Wijeweera. The only reason for this hue and cry is the persistent lobbying and wealth of the GTF. However, this regime will not and cannot enquire in the Lasantha W enquiry without compromosing one of their new political allies. I am worried because this is also typical of US and British double standards. No enquiry into French atrocities in Algeria or Vietnam; US atrocities in Vietnam or Falluja etc. but poor dark skinned man is always at the receiving end of this sort of duplicity by western christian nations. For them, killing “hajji, towel heads, rag heads” as they say and killing thousands in iraq was collateral damage. When Christians kill civilians it is for a good cause. I am not and will not defend the excesses allegedly committed by some units or some groups but in the fog of war, where the enemy wears no uniform and hides behind civilians it is not easy to distinguish foe from friend.
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shankar / January 31, 2015
“One Way Sri Lanka Can Shield its ex-Defence Secretary from a U.S. Criminal Prosecution”
can srilanka also shield him from his creator,the supreme being.
diaspora could not shield prabha from the wrath of god.
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Nori Fujihara / January 31, 2015
Having read Goldman’s article in full, the best thing that can happen to Gota is prosecute him in Sri Lanka with all the hearsay evidence, firstly convict him and then acquit him on appeal. The precedent for this is the Bindunuwewa case. You could add spice to the case by making it a trial-at-bar case. That will necessarily stop all the unproductive talk.
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Javi. / January 31, 2015
he needs to be executed den hague style – there are no heros just mercenaries.
Kill citizens of ambude freak civilization Celibacy Pedo control.
Seuvra Hatto!
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Rabok / January 31, 2015
Your leader – Praba had similar mentality – the mentality of a ruthless killer – brainless idiots like you still worship these inhuman qualities – day in day out dreaming of taking revenge from GR and MR – UNFORTUNATELY that will never happen – so do not waste you time – Anyway I also thought of stop commenting – because I think I am wasting my time – with a bunch of bulls
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Javi. / January 31, 2015
BBS Terroristas REboka- Puta madre cabeza,
Cabron fishy smell say the japs-
Poor sole keep chewing those boots.
Dont forget to wash those socks meirda. Phew||
Sihala Rump buddhist hit men
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Jagath Fernando / January 31, 2015
Anyone who has committed a crime shoud face justice.
It does not matter whether it is Mahinda, Gota or Sirisena.
No one should be shielded. These politicians need to know that they will not be in power for ever.
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Swin / January 31, 2015
Patriotic people will not support those who blame the people who saved the country. All these fools rush in to ruin the country not people. One dasy these fools will not have a a country to call their home. MY3 was part of all these he was a responsible minister till he crossed over.
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Ram / January 31, 2015
A professor just out of his nappies shows an interest in Sri Lanka, when he should be more worried about those home grown Human Righs champions who would impose ‘human rights’ with the aid of the army and the air force.
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Ponkoh Sivakumaran / January 31, 2015
All these nationalist and other sentiments aside, Gota is in deep shit. It is not just war crimes that he has committed. It is possible that he is guilty of the white van phenomenon and the killings of many Sinhalese opposed to their regime. Somewhere along the line, there must have been many incidents of torture, forcible kidnapping and retention involves elements of torture. Torture is a universal crime. Pinochet was extradited for torture. It is not just US jurisdiction that is involved as torture is subject to the jurisdiction of every domestic court of every state. So, Gota is going to get caught, if not by the US, by someone sometime. Charles Taylor was tried after 20 odd years. Same with Fujimori and Pinochet. Justice will catch up with Gota. He will lead an existence of fear and misery for quite apart from the Tamils he killed there are the many Sinhalese journalists and others whose disappearances he is alleged to have caused. There must be accountability so that such monsters do not exist in this Buddhist land.
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max / February 1, 2015
Before Mr. Rajapakse is brought to trial for war crimes there stands a long list of US officials who have slaughtered their way through the world with absolute impunity. Surely Mr. Rajapakse must answer to crimes he may have committed but Mr. Goodman , work hard at cleaning your own house first. There is an ocean of blood that has been spilt by your leaders from Henry Kissinger to George W. Bush for starters.
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Native Vedda / February 2, 2015
max
In case if Ryan Goodman is reluctant to take Henry Kissinger, George W. Bush and other officials to war crime tribunals as a concerned person why don’t you give it a try and charge them?
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Javi. / February 3, 2015
maximum the Ambude wax,
When you see Shrubs Elephant given by fascist Richard werewolf Jayawadi Pres to Regan you will belch and fart non stop- then you claim hospital and sihala buddist mental asylum there USA and meet Tonto Ring the horse rider from spain.
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