Helping Sri Lanka’s New Democracy

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.