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Get Gota: holding a war criminal accountable

By Binoy Kampmark - posted Thursday, 21 July 2022


Civil suits have become another avenue of redress in the absence of criminal proceedings, though these have been complicated by questions of state immunity. Ahimsa Wickrematunge, daughter of assassinated Sri Lankan journalist Lasantha Wickrematunge, is one figure seeking damages from the man she accuses of authorising the murder of her father, former editor of the Sunday Leader newspaper, in 2009.

The civil action, filed in the US District Court for the Central District of California, alleged extra judicial killing, crimes against humanity and torture. The action was dismissed because the plaintiff "cited no authority suggesting that Defendant's citizenship alone should override the fact that all of the allegations against him concern actions taken in an official capacity as the Sri Lankan Secretary of Defense." In conclusion, the Court found for Gotabaya, as he was "entitled to common law foreign official immunity." There was an absence of "subject matter jurisdiction".

Former detective with Sri Lanka's Criminal Investigation Department (CID) Nishantha Silva also argues that, as secretary of defence, Gotabaya had the means, opportunity and, in the words of his written statement for the People's Tribunal on the Murder of Journalists, "a clear motive for killing Lasantha Wickrematunge".

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Another possibility, one as yet unexercised, is available under the War Crimes Act of 1996 , which amended the Federal criminal code to enable the prosecution and punishment of US nationals for grave breaches of the Geneva Conventions. Law academic Ryan Goodman, in a pertinent 2014 piece for Just Security, argues that there would be "a legal windfall for any US effort to investigate and prosecute [Gota] across international borders. His citizenship also expands US policy space – by reducing US vulnerability to accusations of meddling if we go after one of our own."

As politicians the world over dread the spectacle of an enraged citizenry storming the residences of president and prime minister, taking dips in their pools, sitting at their desks and eating on the lawns as public commons, a number of dedicated human rights lawyers will be readying their briefs and submissions. Their mission: Get Gota.

 

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About the Author

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University, Melbourne and blogs at Oz Moses.

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