FEIN: A genocide inquiry?

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By Bruce Fein

COMMENTARY:

Bosnia has its Radovan Karadzic, Sudan has its Omar Bashir and the United States could have its Gotabhaya Rajapaksa. He is a United States citizen serving as Sri Lanka's Sinhala Buddhist defense secretary who may be complicit in an ongoing genocide against Sri Lanka's Tamils.

While Mr. Rajapaksa enjoys a presumption of innocence, the United States should be investigating to ensure it is as scrupulous in genocide enforcement as is expected of foreign governments.

Until Mr. Karadzic's recent capture by Serbia, the United States had imposed economic sanctions against the Serbian government for noncooperation with the International Criminal Tribunal. An additional earmark of United States abhorrence of genocide is the Office of Special Investigations (OSI) in the U.S. Justice Department. It is tasked to investigate individuals complicit in Nazi-sponsored acts of persecution who subsequently entered the United States by fraud. The guilty are denaturalized or deported.

The OSI would thus be well suited to lead a genocide investigation of the defense secretary. The United States criminal code prohibits the crime, wherever perpetrated, by a United States national, green-card holder or any other person found or brought into the country.

Adolf Hitler's "Mein Kampf" featuring anti-Jewish diatribes previewed the Holocaust. The parallel political dynamic at work in Sri Lanka is the Buddhist Mahavamsa combined with Buddhist monk teachings that non-Buddhist Tamils must be exterminated to honor Buddha's vision of an ethnically pure Sri Lankan state. As recently as July 20, 2008, AFP news service quoted Mr. Rajapaksa's close colleague, Lt. Gen. Sarath Fonseka, as describing Sri Lanka as a "Sinhala nation" to the exclusion of Tamils. That exclusionary concept is reminiscent of Hitler's ambition to make Nazi Germany "judenfrei," or free of Jews. And just as Hitler's Waffen SS was pure Aryan, the Rajapksa-Fonseka Sri Lankan armed forces are virtually pure Sinhala.

An investigation of Defense Secretary Rajapaksa would seem amply justified by the benchmarks of the Karadzic or Bashir indictment or arrest warrant. All three are potentially culpable under the time-honored doctrine of command responsibility. Generally speaking, it imposes criminal liability on government superiors who either knew or had reason to know of war crimes by subordinates and neglected to take reasonable measures to prevent or to punish the perpetrators.

Mr. Karadzic confronts a trial for, among other things, genocide of thousands of Bosnian Muslims at Srebrenica before the International Criminal Tribunal for the former Yugoslavia. On July 14, 2008, Luis Moreno-Ocampo, prosecutor of the International Criminal Court, applied for an arrest warrant against President Bashir. The application accused him of genocide by killing, raping and starving members of the Fur, Masalit and Zaghawa ethnic groups.

The prosecutor specially emphasized that President Bashir "denies victims [of genocide] access to the criminal justice system, while using the system against those who did not comply with his genocidal orders. [He] protects, promotes and provides impunity to his subordinates, in order to secure their willingness to continue committing crimes. He could authorize investigations of members of the armed and security forces, but the only officers investigated are those who refuse to participate in crimes." Prosecutor Moreno-Ocampo concluded: "Al Bashir's motive was control of power. His pretext was a 'counterinsurgency.' His intent was genocide."

There is reason to believe that Gotabhaya Rajapaksa has been complicit in a Srebrenica-like genocide or worse against Sri Lanka's Tamils on the installment plan. Since entering office in November 2005, he has been witness to the extrajudicial killings of more than 1,500 Tamils, torture, scores of kidnappings, countless arbitrary detentions and displacement of more than 250,000, a staggering percentage of Tamils who have not fled abroad seeking asylum. The Asian Human Rights Commission reported on Feb. 2, 2007: "A disappearance every five hours [in Sri Lanka] is a result of a deliberate removal of all legal safeguards against illegal detention, murder and illegal disposal of bodies."

The U.S. State Department's 2007 human rights report on Sir Lanka elaborated: "[T]he overwhelming majority of victims of human rights violations, such as killings and disappearances, were young male Tamils. Credible reports cited unlawful killings by government agents, assassinations by unknown perpetrators, politically motivated killings and child soldier recruitment by paramilitary forces associated with the government, disappearances, [and] arbitrary arrests and detentions. ... By year's end, extrajudicial killings occurred in Jaffna on a daily basis and allegedly perpetrated by military intelligence units or associated paramilitaries."

There has not been a single prosecution for these crimes. Indeed, in the entire 60-year history of the Sinhala-Buddhist dominated governments in Sri Lanka, no crime against a Tamil has ever been punished - a grisliness that apes Hitler's impunity for Nazi crimes against Jews.

The United States cannot credibly berate other countries over lax assistance in genocide prosecutions if does not meticulously enforce its own genocide prohibitions. Gotabhaya Rajapaksa deserves a presumption of innocence. An investigation could exonerate him of criminality. But both direct and circumstantial evidence militate in favor of taking at hard look at what has been done and is being done to Sri Lanka's Tamils.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and a representative of Tamils Against Genocide, a nonprofit organization dedicated to the prosecution of perpetrators of genocide against Tamils.