ECONOMYNEXT – The United States has tools to prosecute Sri Lanka defence officials who are dual citizens for crimes including torture, a Department of Justice official told a congressional hearing aimed tightening laws to prosecute those engaging in mass atrocities and war crimes.
"Jurisdiction Congress has given us allows to prosecute U.S. citizens who have committed acts of torture abroad," David Rybicki, deputy assistant attorney general, criminal division, Department of Justice (DOJ) told Representative Jim McGovern, who was chairing a House Tom Lantos Commission for Human Rights hearing.
"And the Department used that statute to prosecute Chuckie Taylor, son of the former Liberian dictator who received a 97-year sentence."
Citizens and Residents
He was responding to McGovern who asked what measures "the DOJ and DHS (Department of Homeland Security) take, to hold perpetrators accountable when he/she is a U.S. citizen and green card holder?"
McGovern said former Sri Lanka Defence Secretary Gothabhaya Rajapaksa was a US citizen and former army chief Sarath Fonseka was a green card holder.
Rybicki said there were “substantive human rights statutes, immigration, naturalisation law for non-U.S. citizens … or special tools Congress has given us to look at extraterritorial conduct."
Beth Van Schaack, a professor at Stanford University said there were gaps in some of the US law, which needed to be closed to perpetrators of crimes resident in the US to justice.
"This is a great case to activate our War Crimes Act as he (Rajapaksa) is a U.S. national and he falls within that jurisdiction," she said.
"And would be a great case if we had a command responsibility or superior responsibility statute."
Van Schaack suggested about 10 changes to bring to justice those committing mass atrocities and abuses, who then come to the US.
Also giving testimony was Dixon Osburn, executive director of the Centre for Justice and Accountability (CJA) that represents Ahimsa Wickrematunge, daughter of slain Sunday Leader editor Lasantha Wickrematunge, in her civil case against Rajapaksa.
Osburn, whose organization was also working on a case where 600 people were massacred in Liberia inside a Church, said the murder was emblematic of the killings during Sri Lanka’s civil war, where had been murdered in broad daylight by persons who came in motorcycles wearing black.
"We think there is sufficient evidence to show that he is responsible for that."
In addition to Sri Lanka, McGovern also highlighted El Salvador, where the military leaders of had engaged in a massacre of over a thousand people, but those at higher echelons had been given residence in the US.
He said the US had greater responsibility to prosecute when atrocities were committed by regimes that had American support.
Van Schaack said in the case of war crimes it was easy to prosecute a dual citizen or resident when the victim was a US citizen, but not otherwise, and the law needed to be revised to be in line with other statues such as torture.
Witnesses said sometimes perpetrators were prosecuted under immigration violations or deported or extradited.
Van Schaack said statute of limitations be extended in the case of great crimes, and extraditions could be a sham unless there was genuine political will to prosecute.
McGovern questioned the effect of a plan by President Donald Trump to pardon military officials who were convicted by US courts.
Trump, a typical nationalist is a ‘national security’ style president, who cares little for individual freedom, liberty or the rule of law, critics say.
In the US nationalists are in the front row and liberals are in the backfoot, resulting in most of the accusations falsely made against the US in the past including on issues such as free trade have now become a reality, they say.
Trump has been described by critics as an isolationist who is not just destroying institutions of liberty at home, but is also undermining international institutions which have helped maintain individual freedoms over that of states and rulers.
Osburn said the US did not have a clean record in accountability, especially in the wake of 911, torture cases by the military were not dealt with.
"That is a level of accountability that we have not achieved, and we need to continue to raise that," he said.
"What was committed was torture."
Osburn said the standard of proof in the case of military justice was very high.
"If they have convicted members of their own – fellow servicemen – of having committed war crime to have a President step in and pardon them sends the worst possible signal that you can imagine."
"And the world does watch."
"I agree that it send a terrible message," Van Schaack. "And it also sends a terrible message to our men in uniform who every day, are put in incredibly difficult situations and take their international law training and laws of armed conflict really seriously.
She said if a person was convicted under the US justice system it was usually fair.
"Wearing my diplomatic hat, it makes us very difficult to promote human rights accountability abroad when we are not providing it at home." (Colombo/June22/2019)