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Thursday 18 July 2019
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Sri Lanka would have to prosecute Gota to secure his safety from a U.S. war crime prosecution: Says US legal expert

Sri Lanka would have to prosecute Gota to secure his safety from a U.S. war crime prosecution: Says US legal expert

“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 “ says Ryan Goodman, co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law.

He said so in a rejoinder to the Sri Lankan Justice Deputy Minister Sujeewa Senasinghe,  who had last week in a reply to Ryan Goodman’s article stated that former Defence Secretary Gotabhaya Rajapaksa has full protection against being taken to a war crimes tribunal of another country as long as he is on Sri Lankan soil.

Ryan in his previous article published on  New York Times described the reasons that the United States can and should pursue a criminal investigation of U.S. citizen and ex-Defense Secretary of Sri Lanka, Gotabaya Rajapaksa.

“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” said Ryan in his rejoinder to the Deputy Minister.

 Below is his full rejoinder to the Deputy Minister:

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-Defense 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.

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 from the Minister of External Affairs. The United States can help engage current political will to ensure the pronouncements of these senior officials become tangible government policy.

 


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