Monday, May 19th marks the five-year anniversary of the end of Sri Lanka’s civil war, which claimed the lives of 40,000 to 70,000 civilians in its “catastrophic” final phase. In 2009, Congress asked the State Department to report on the humanitarian law violations during the war, and those reports make for gruesome reading. If history is a guide, this week congressional representatives will publicly call for accountability for war crimes in Sri Lanka—as members of Congress have done on the past four anniversaries. (See accompanying post, “Honor Roll of US Congressional Members Who’ve Stood for Accountability in Sri Lanka”)

This post proposes specific action that congressional members can include in such calls, and something meaningful that the Justice Department’s war crimes section can do.

The man who oversaw the Sri Lankan armed forces’ operations during the final stages of the war was the President’s brother and current Defense Secretary, Gotabaya Rajapaksa (“Gota”). As detailed below, not only was Gota the self-proclaimed mastermind of the military’s actions and thus criminally liable under well-settled international rules of command responsibility; there is also prima facie evidence in the public record that he ordered the execution of political leaders and their families upon their surrender, that he directed the systematic bombing of civilian hospitals, and that he repeatedly suggested that he could target and deliberately kill innocent civilians in order to win the war against the LTTE. That’s just the public record. (There is good reason to believe the Justice Department is sitting on a trove of additional incriminating evidence against Gota.)

Why might Americans, in particular, care about Gota?

Here’s the dirty secret: He is one of us. As “luck” would have it, Gota happens to be an American citizen, who once worked as a computer systems administrator at Loyola Law School in Los Angeles before he became the architect of Sri Lanka’s Killing Fields.

As a citizen of the United States, Sri Lanka’s Defense Secretary is thus directly liable under Congress’s War Crimes Act—a legal windfall for any US effort to investigate and prosecute him 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. That’s the upside to taking such actions.

There is also a downside in not taking action—and taking it soon. Failure to act when we have such a capacity to do something meaningful undermines the US position that the time for accountability in Sri Lanka is now, especially since the Rajapaksa government has demonstrated no real interest in pursuing credible war crimes investigations on its own.

Failure to act also sends a negative signal for US counterterrorism efforts with other foreign military partners. Gota and his top brass disregarded repeated US calls for restraint during the final stages of the war, despite years of relationship-building between our two militaries (see the SFRC’s “Kerry Report” of 2009). Such gross excesses by the army followed by an absence of accountability for their actions signals a lack of US leverage to our military partners elsewhere. Moreover, Sri Lanka’s historic defeat of an insurgency is emerging as a competing model to US counterinsurgency and counterterrorism strategy. It is a draconian alternative that, if adopted by other militaries, risks counterproductive and blowback effects to the detriment of US interests. The United States now needs to take up the mantle to demonstrate to the world that Gota’s model of warfare is absolutely unacceptable.

Let’s turn to the facts in the public record about Gota’s alleged crimes.

I. Alleged Crimes

A. Command responsibility

Among the standard forms of criminal liability for commanders during armed conflict, Gota may be held liable if his subordinates perpetrated widespread crimes and he failed to repress them. The UN Secretary-General’s panel of experts found war crimes committed on both sides of the conflict, including institutionalized practices and policies on the part of the government’s forces. The report concluded that the evidence of systematic war crimes and crimes against humanity “represented a grave assault on the entire regime of international law” designed to protect victims of armed conflict.

Did Gota exercise the type of control over the troops that committed those acts? Consider four data points:

1. In an interview posted on the Sri Lankan Defense Ministry’s website, Gota boasted about his close management of the operations:

“Gotabaya says that he along with [Sri Lankan armed forces] top brass ‘read’ and analysed the war operations every hour, every day. … ‘My job was to understand the priorities, rationally organize those priorities in terms of what was really required for victory and flush out needs and requirements that had zero relevance to our objectives.’”

2. In a Wikileaks cable, US Ambassador Patricia Butenis candidly reported that “responsibility for many of the alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers.” Senator Ed Markey has called Ambassador’s Butenis’s statement “devastating.”

3. Also proudly reproduced on the government’s website is a detailed article published in the Indian Defence Review entitled, “Eight Fundamentals of Victory or the ‘Rajapaksa Model’ of Fighting Terror.” The description of the “Sixth Fundamental—Complete Operational Freedom”—shows how Gota unleashed the worst forms of violence by his troops:

“With rock solid political backing Fonseka was able to motivate his troops and officers to go all out without fearing any adverse consequences. It’s not surprising why Eelam IV turned out to be a bloody and a brutal war. ‘That there will be civilian casualties was a given and [Gota] Rajapaksa was ready to take the blame. This gave the Army tremendous confidence. It was the best morale booster the forces could have got,’ says a Sri Lankan minister who wishes to let this quote remain unattributed.”

4. A pro-government book (check out the book launch’s fanfare), Gota’s War, describes a well-disciplined military campaign in the final stages. Gordon Weiss, who served as the UN spokesperson in Sri Lanka in the final months of the war, stated that the details in Gota’s War “confirms beyond doubt the command responsibility of Gotabaya Rajapaksa.”

B. Direct orders: The “white flag” incident

On May 16, the President of Sri Lanka announced the military defeat of the LTTE. At roughly 6:30 a.m. two days later, according to the UN panel of experts‘ findings (and other reputable reports [update: and here]), the two top political leaders of the LTTE emerged from their hideout walking slowly with a white flag and accompanied by a large group of their family members in a surrender that had been organized by international brokers. The two leaders and their family members, including unarmed women and children, were all shot dead. As the State Department reported to Congress, Sri Lanka’s own former Army Chief stated that Gota had given the order that “they must all be killed.” [The Army Chief made those statements to the media, and secretly discussed the incident with the US Ambassador.]

In an interview with BBC’s Hardtalk, Gota was told that the former Army Chief said he would testify before an independent war crimes investigation. Gota responded irate: “He can’t do that. He was the commander. … That is a treason. We will hang him.” The Army Chief was later prosecuted and imprisoned in a manner that the State Department recognized as illegitimate in its 2011 annual report on Sri Lanka.

In 2011, Britain’s channel 4 reported an interview with an army officer who served in Brigadier Shavendra Silva’s 58 Division that carried out the attack. The officer stated: “The defence secretary phoned Brigadier Shavendra Silva and ordered him not to take them prisoner, but to kill them. … I can confidently state that those who ordered the killings were Defence Secretary Gotabaya Rajapaksa and Brigadier Shavendra Silva.”

You might ask, what happened to Brigadier Silva after the white flag incident? He was promoted to Major General and then appointed Deputy Ambassador to the United Nations in New York.

C. Direct orders: Attacking civilian hospitals

The UN Secretary-General’s panel report includes findings that “[t]he Government systematically shelled hospitals on the frontlines. All hospitals in the Vanni were hit by mortars and artillery, some of them were hit repeatedly.” The Department of State’s 2012 report to Congress picked up on these findings and concluded that they should be investigated and prosecuted. The State Department’s report, handled by its Office of Global Criminal Justice, states:

“[T]he [United Nations panel] report concludes that ‘virtually every hospital in the Vanni, whether permanent or makeshift, was hit by artillery.’The Panel found that the PTK Hospital was shelled every day from January 29 to February 4 most likely by the 55th Division of the SLA. …As these allegations implicate grave breaches of IHL, they merit full investigation and, if appropriate, prosecution of the responsible individuals.” (my emphasis added)

In interviews with the media, Gota stated that he considered these hospitals legitimate military targets. That’s right, a prosecutor’s dream piece of evidence. Here is one of those exchanges:

“REPORTER: The aid agencies say a hospital packed with wounded has been repeatedly shelled, killing some patients and injuring many more. The Defence Secretary has told us that right now everything is a legitimate target if it’s not within the safe zone the government has created. And the only hospital [in the area] is outside that zone.

GOTA: Nothing should exist beyond the no fire zone. Nothing should …

INTERVIEWER: So just to be clear, if this hospital is operating…

GOTA: No hospital should, no hospital should operate now…

INTERVIEWER: If it’s outside of the safe zone, it’s a legitimate target?

GOTA: Yes. No hospital should operate in the area, nothing should operate. That is why we clearly gave these no fire zones.” (emphasis added)

To be clear, although the above admission applied to a hospital outside the No Fire Zones, the Sri Lankan military shelled hospitals both inside and outside those areas during the last stages of the war.

D. Attacking Civilians

Human Rights Watch reported that Gota suggested he considered civilians in the area legitimate targets:

“Sri Lanka’s Defense Secretary Gotabhaya Rajapaksa suggested in an interview to media on February 3 [2009] that all persons subject to attack by the armed forces were legitimate LTTE targets. He stated: ‘There are no independent observers, only LTTE sympathizers. Radio announcements were made and movement of civilians started a month and a half ago.’”

That outlook was also in evidence during an episode recounted in Gordon Weiss’s book, The Cage, in which Gota verbally erupted in response to a delegation from the UN at the home of Sri Lanka’s foreign minister:

“They presented the UN estimate of the number of dead to a gathering of ministers and officers. An enraged defense secretary demanded to know what business the UN thought it had collecting numbers. He insisted that they should refer to the dead as ‘people’ rather than ‘civilians,’ suggesting that no distinction could be made between fighters and innocent victims.” (p. 124)

I imagine some of the members of that UN delegation would be willing to testify against Gota.

II. Steps for the United States

According to the internal talking points prepared for the US Ambassador to Sri Lanka on the release of the State Department’s 2009 report to Congress, US or international prosecutions loomed as a threat. The talking points read:

“International law places primary responsibility on the state to ensure that those responsible for violations of international humanitarian law and human rights law in its territory are held accountable, but recognizes the appropriateness of international mechanisms where a state is unable or unwilling to act.”

Gota is a key obstacle to meaningful accountability in the country, and he needs to be politically marginalized to make room for more moderate voices. In Gota’s own words, as long as he holds the reins, there will be no credible war crimes investigations. He told the BBC:

“There will be no investigations in this country. … These are the people who have other motives who are asking. … I am not allowing any investigations in this country. There is no reason. Nothing wrong happened in this country. … Take it from me. … This is my final word.”

The White House successfully led an effort at the UN calling for an international war crimes inquiry, and Congress (through the State and Foreign Operations Appropriations Act) has tightened the screws on Sri Lanka with respect to financial and military cooperation. What specific steps are now open to the United States to enhance these efforts?

A. Publicly open a criminal investigation

Even if Gota never sees the inside walls of a US prison, the White House could send a powerful signal of its commitment to accountability by formally investigating and, if the evidence is there, indicting Gota. It would at least help to marginalize a man who many consider a principal roadblock to a just and stable transition. As I explained above, because of Gota’s citizenship the US would also be less vulnerable to accusations of meddling. And, indeed, the US administration could also suspend its own criminal inquiry, in a very public way, on the ground that it will give Sri Lanka’s political establishment an opportunity to do the right thing. Congressional members can very publicly support the initiation of a full-blown criminal inquiry by the Justice Department.

B. Release key information the US holds

The administration should publicly release some of the intelligence that it might have in its possession such as phone intercepts of Gota’s orders and satellite imagery of the last stages of the war. In a post-Snowden world, revelation that the United States has these capacities and engages in such SIGINT operations is nothing new. At least the cost is not as high to revealing this information, and its public exposure can be especially valuable in mobilizing efforts toward accountability.

* * *

In May 2009, President Obama stood in front of the White House (video; transcript) to call on Sri Lanka’s government to “stop the indiscriminate shelling that has taken hundreds of innocent lives, including several hospitals.” Gota flatly ignored that warning. Taking the steps outlined in this post would allow the President to show that ignoring such a message can have serious consequences.