FB photo
By
Thambu Kanagasabai
Gotabaya Rajapaksa, who is a dual citizen of Sri Lanka and USA, flew back to Sri Lanka after the victory of Mahinda Rajapaksa as the President in 2005. He was appointed as the Defence Secretary in 2005 and took control of the Police and Military Forces, Intelligence Division including the 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, alleged to have been initiated 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 paying a fine. His torture involved being beaten with metal pipes, clubs and rifle butts besides mental torture by being deprived sufficient food, water and sleep. He was spared death as the captors thought twice about his Canadian citizenship and the resultant consequences.
He filed a case against the 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 being the residence of Gotabaya who owns property there. The summons was served personally to Gotabaya on April 7, 2019 after he was tracked down in a parking lot of a shopping mall in California.
The torture claim was filed by Roy under the provisions of the Torture Victim Protection Act 1992 while a Torture Claim [Civil Wrong] was filed under the Alien Torture Protection Act 1789.
The Torture Victim Protection Act allows US Federal Governments to hear claims against individuals acting under the actual or apparent authority of a foreign nation that has committed torture or an extra judicial killing. Both US or non-citizens and any nationals may file suit and the summons must be served in the USA in person, the defendant needing also to be within the jurisdiction of the 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 the court jurisdiction over him.
Roy has charged Gotabaya with the following offences:
1 – Torture
2 – Civil Arrest and Battery
3 – Intentional Infliction of Emotional Distress
4 – False Imprisonment
The case is based on Gotabaya’s Command Responsibility for all acts of the Police and Military. Roy is claiming compensatory and punitive damages amounting to more than $75,000.00 for each offence.
It is to be noted that the 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 Wickrematunge’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 the extra judicial killing of her father. The cases were filed in California, USA on April 4, 2019 when a summons was served in person to Gotabaya on April 7, 2019 at the aforementioned shopping mall parking lot in California.
The 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 corruption and other scandals involving politicians. He focused on ruling members’ corrupt acts, Gotabaya 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 Rajapaksa and Gotabaya and had to pay the price for it.
It is to be noted that 26 journalists were murdered during Mahinda Rajapaksa’s rule from 2006-2015. Lasantha a recipient of the UN award for Integrity predicted his own death in a letter he wrote before his killing, which tragically came true when he was brutally murdered on January 8, 2009. As usual, his case is still lying around 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 the 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 relief for torture 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, the Minister of Defence in Chile in 2016 was found guilty of extra judicial killings and the victims were awarded compensation amounting to $28 Million. Similar cases also were filed in China, El-Salvador and 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.
With Ahimsa’s case being a civil one, there is no possibility of any sentences for the crime of murder against Gotabaya, such as jail, but only compensation for the civil wrongs including punitive damages. With uncertain local remedies in Sri Lanka, Ahimsa has sought the relief 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 the 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 Rajapaksa 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 the request of Madam Yasmin Sooka to initiate the Universal Jurisdiction Process.
Justice may grind slowly but surely will prevail.
Thambu Kanagasabai
Thambu Kanagasabai LL.M (London) – Former Lecturer in Law, University Of Colombo, Sri Lanka.