By RYAN GOODMAN - New York Times
Sri Lanka’s
voters shocked themselves and the world this month by tossing out their
president, who crushed the Tamil insurgency in 2009 and then led the country,
along with his brother as defense secretary, to the brink of authoritarianism.
The new president has promised to restore freedom of the press, independence of
judges, and the rights of religious and ethnic minorities.
Democracy
advocates, including Secretary of State John Kerry, say this is the country’s
most important chance to open a new chapter in more than a decade.
But the
country must make sure that members of the ousted regime do not return to power
and that the new government can secure its authority. The United States — and
only the United States — can do something to help make that happen.
The former
president, Mahinda Rajapaksa, and his brother, Gotabaya Rajapaksa, aren’t
politically dead yet. Critical parliamentary elections are scheduled for April.
The new president, Maithripala Sirisena, rode to electoral victory on the back
of a diverse group of parties. He must now consolidate his power so that
democratic reform can go ahead.
What can the
United States do to help? Mr. Kerry said the United States would take up
longstanding human rights concerns with the new government. The State Department
has spearheaded the creation of a United Nations investigation into war crimes
committed under the Rajapaksa regime during the country’s civil war, which
lasted from 1983 to 2009.
But that
inquiry offers both too much and too little at this point. Too much, because
pushing for full, sweeping accountability in this fragile moment of transition
could destabilize the new government and jeopardize the warming of relations
between the United States and Sri Lanka. Too little, because the United Nations
investigation doesn’t have any teeth — the panel leading it doesn’t have the
powers of a criminal tribunal, and cannot even impose a financial penalty.
Here is
where Washington can play a constructive role.
Gotabaya
Rajapaksa, the former defense secretary, oversaw the Sri Lankan armed forces’
worst atrocities during the final stages of the civil war and, as it happens,
he is a naturalized American citizen. (Indeed, he used to live in Los Angeles,
where he worked as a computer systems operator at Loyola Law School.)
As a
citizen, Mr. Rajapaksa can be held liable under the War Crimes Act of 1996,
which puts war crimes anywhere in the world under the jurisdiction of United
States courts if the perpetrator, or the victim, is a United States citizen.
Put another way, the United States has a perfect justification to go after Mr.
Rajapaksa individually.
Independent
observers have long viewed Gotabaya Rajapaksa as an obstacle, perhaps even more
than his brother, to a smooth political transition in Sri Lanka. There is little
indication that he will respect the new government, which has opened an
investigation to look into widely reported allegations that he and his brother
attempted to engineer a military coup to overturn the election results.
It is in the
new government’s interest to move decisively to protect its democratic victory
by eliminating the threat of Mr. Rajapaksa’s return to power. That is a
distinct possibility if his brother, Mahinda, succeeds in a bid to maintain
control over the powerful opposition party.
That’s why
marginalizing Mr. Rajapaksa now is important. The new president, Mr. Sirisena,
has signaled that he is open to domestic criminal prosecutions to ward off
foreign war crimes trials. And the president’s spokesman has indicated that the
government may be willing to prosecute specific war crimes, such as the
so-called White Flag incident, in which surrendering Tamil leaders with white
flags were allegedly executed by soldiers on the final day of the civil war.
That’s a highly significant statement because, as many Sri Lankans know, and as
the State Department reported to Congress, the army chief at the time said that
Mr. Rajapaksa gave the order “they must all be killed,” and later added that he
would be willing to testify in a war crimes trial.
But
proceeding against Mr. Rajapaksa will be politically challenging for the new
Sri Lankan government to do on its own. The United States could help by
signaling its own interest in opening a criminal case against Mr. Rajapaksa in
the event that Sri Lanka doesn’t. That would give the new government both an
opportunity and a justification to clean its house. Because of Mr. Rajapaksa’s
citizenship, the United States would also be less vulnerable to accusations
that it was meddling in the affairs of another nation.
The Obama
administration might even say, in a very public way, that it will decide
whether to proceed with its own criminal inquiry after giving Sri Lanka’s new
establishment an opportunity to move first. Such signals from the United States
could help politically marginalize the Rajapaksas at a critical point in the
life of the country. They would also bolster President Sirisena’s efforts to
have the country repudiate the past and recognize that its best future lies
with his administration. The United States should do its part to bring
accountability to Sri Lanka and assist its transition to democracy.
Ryan Goodman
is a professor of law, politics and sociology at New York University and
co-editor in chief of the blog Just Security.
