Fighting for delayed accountability and justice
by Thambu Kanagasabai, LLM [Lond.] Former Lecturer in Law University of Colombo, Sri Lanka.
Gotabaya Rajapakshe, who is a dual citizen of Sri Lanka and USA, flew back to Sri Lanka after the victory of Mahinda Rajapakshe as the President in 2005. He was appointed as the Defence Secretary in 2005 and took control of Police and Military Forces, Intelligence Division including Terrorist Investigating Department. His actions were beyond questioning except his reporting to his brother President who virtually allowed a free run for Gotabaya which resulted in several killings, torture, white van abductions, detentions and extortions etc. alleged to have been initiated by and instigated by Gotayabaya and executed by his handy men.
One of the alleged victims is Roy Samathanam a Canadian citizen who visited Sri Lanka with his family in 2007. He was arrested on September 14. 2007 after a raid in the early morning when he refused to pay a large sum of money. He was charged with illegal possession of GPS and was later released in August 2010 after undergoing torture both physical and mental inflicted by the Security personnel, but only after being forced to sign a false confession and paid a fine. His torture involved beating with metal pipes clubs and rifle butts besides mental torture by depriving sufficient food, water and sleep. He was spared the death as the captors thought twice about his Canadian Citizenship and the resultant consequences.
He filed a case against Sri Lankan Government in 2016 involving Gotabaya at the United Nations Human Rights Torture Committee in Geneva and was successful in obtaining an award of compensation for the crime of torture against the Sri Lankan Government and Gotabaya. But his compensation award has still not been honored by the Sri Lankan Government.
Roy has now filed a civil case in California, USA. This place being the residence city of Gotabaya who owns property and residence,the summons was served personally to Gotabaya on April 07, 2019 after he was tracked down in a parking lot of a Shopping Mall called Traders Joes in California.
Torture claim was filed by Roy under the provisions of Torture Victim Protection Act 1992 while Torture Claim [Civil Wrong] was filed under Alien Torture Protection Act 1789.
Torture Victim Protection Act allows US Federal Governments to hear claim against individuals who acting under the actual or apparent authority of a foreign nation committed torture or extra judicial killing. Both US or non-citizen and any national may file suit and the summons must be served in USA in person and the defendant must be within the jurisdiction of USA for a case to be initiated. Both these conditions were fulfilled as far as Gotabaya is concerned.
Roy being a non-citizen of USA, and Gotabaya having residence in USA and being a US citizen is satisfying the existence of court jurisdiction over him.
Roy has charged Gotabaya for the following offences:
- Civil Arrest and Battery
- Intentional Infliction of Emotional Distress
- False Imprisonment
Case is based on Gotabaya’s Command Responsibility for all acts of Police and Military. Roy is claiming compensatory and punitive damages amounting to more than $75,000.00 for each offences.
It is to be noted that International Truth and Justice Project headed by Yasmin Sooka, a well-renowned human rights activist and the Law Firm Housefeld are handling the case of Roy.
Lasantha’s Case: Lasantha’s daughter Ahimsa has also filed a civil case claiming compensation or punitive damages for crimes against humanity, viz killing of civilians, journalists etc and extra judicial killing of Lasantha. The cases were filed in California. USA on April 04, 2019 when summons was served in person to Gotabaya on April 07, 2019 at the Trader Joe’s parking lot in California.
Centre for Justice and Accountability is handling the case of Lasantha’s killing. Lasantha, a fearless and brave journalist who founded the “Sunday Leader” newspaper in 1994 was exposing the corruption and other scandals involving politicians. He focused on ruling member’s corrupt acts and Gotabaya was one of them whose actions deserved the scrutiny of Lasantha who exposed the various corrupt deals of Gotabaya including MIG purchases from Ukraine. Lasantha earned the wrath of both Mahinda Rajapakshe and Gotabaya and he had to pay the price for it. It is to be noted that 26 Journalist were murdered during Mahinda Rajapakshe’s rule from 2006-2015. Lasantha a recipient of UN award for Integrity predicted his own death in a letter he wrote before his killing and his prediction came true when he was brutally murdered on January 08, 2009. As usual, his case is still lying without prompt judicial process in Sri Lanka.
Ahimsa’s claims for punitive damages are on the grounds of severe pain and emotional distress suffered as a result of her father’s death. Ahimsa’s case is also filed under the provisions of Torture Victim Act and Alien Protection Act.
Ahimsa has demanded a Jury Trial for authorizing this extra-judicial killing and is seeking compensatory and punitive damages and reliefs for tortures in violation of international and domestic laws. Gotabaya is also charged under the command responsibility for instigating and authorizing the killing of Lasantha.
It is to be re-noted that under this principle, Minister of Defence in Chile in 2016 was found guilty of extra judicial killings and the victims were awarded compensation amounting $28 Million. Similar cases also were filed in China, El-Salvador with a case in Somalia having a successful outcome when an Army Lieutenant was found guilty of killing a singer and was awarded a sum of $28 Million.
Ahimsa’s case being a civil one, there is no possibility for any sentences for the crime of murder against Gotabaya, like jail but only compensation for the civil wrongs including punitive damages. With uncertain local remedies in Sri Lanka, Ahimsa has sought the reliefs from US laws to uphold accountability and justice for the traumatised family members.
It is to be noted that the above cases were filed by Centre for Justice and Accountability, a San Francisco based Human Rights legal organization, dedicated to deterring war crimes, torture etc. through litigation and justice strategies.
It is hoped that the hundreds of victims during the rule of Rajapakshaes will emerge from complacency and initiate legal proceedings with the active assistance and support of ITJP and CJA who are relentlessly and selflessly fighting for accountability and justice throughout the world bearing in mind request of Madam Jasmin Sooka to initiate the Universal Jurisdiction Process
JUSTICE MAY GRIND SLOWLY BUT SURELY WILL.