Friday, 8 August 2014

Reply to Ryan Goodman 1 of 4 - What is this all about?

What is this all about? 


Ryan Goodman, a professor of Law of Anne and Joel Ehrenkranz at New York University, points out that the Sri Lankan Model of counterinsurgency and counterterrorism strategy (CC Strategy) is a real threat to the US counterinsurgency and counterterrorism strategy and US' interests. 

He advices the relevant US authorities to release the details of interception of Gotabaya's phone record to US Justice Department in order to facilitate the indictment of Gotabaya in the US as a US citizen. If there has been interceptions of Gotabaya's communications there are  indeed has been illegal intersections. Goodman does not care about the fact that they are illegal. 

In this series of article I will discuss the following questions: How come the Sri Lankan (Gota') Model pose a real threat to US' model of CC Strategy/Operations? What compromise has Goodman made to the real accounts which unfolded on the ground of Wanni in the final phase of guerrilla war against the LTTE, in order to write an eloquent article? What damages could the US authorities inflict on their national interests if those interceptions were compromised? 

Four articles, including this one, explore those points. 

The followings are Goodman's articles;
  1. Sri Lanka’s Greatest War Criminal (Gotabaya) is a US Citizen: It’s Time to Hold Him Accountable  (May 19, 2014) 
  2. Road Map I: What More Congress (and the Administration) Can Do to Promote Accountability in Sri Lanka (July 15, 2014) 
  3. Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes—The Case of Gotabaya Rajapaksa (July 30, 2014)

I outline some crucial context in this article and the next one reveal the compromising nature of Goodman's articles. This will help an neutral reader to have an objective view of the final phase. The second article is titled 'What does he leave-out'. The third article, 'Politics behind', analyses the subtle and hidden political agenda behind his articles. The third article offers a great insight into how the international law and international politics mingled with each other and how political realism, liberalism and humanitarianism go in hand-in-hand helping each other in Sri Lankan case. Final article, 'the U.S position on Sri Lanka', makes an analysis outlining how damaging it would be to US national interests, if the US administration were to follow up on the Goodman's advice to release details of the interception.

Ryan Goodman

Beside being a law professor, Ryan Goodman is also a Co-Editor-in-Chief of Just Security, an online forum which analyses US national security and policy perspectives. His views were expressed at 'the US Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka on accountability on Sri Lanka' on 9 July in Washington, D.C.

On 30 of July, just a few days ago, a refined and very eloquent analysis came online, in which Goodman outlined all the legal avenues available to the US Justice Department in order to indict Gotabaya. This is possible, because Gotabaya happens to hold a US citizenship.  

For the legal avenues Goodman outlines the following; US War Crime Act of 1996 - this statute allows for the prosecution of war crimes committed abroad, but only if the perpetrator or victim is a U.S. citizen or member of the U.S. Armed Forces (Read further, here); Civil/criminal  liability act, Civil RICO; as well as other options available, such as charging Gotabaya for tax evasion and immigration fraud.


In order to go down with the first avenue of charging Gotabay for war crimes, Goodman believes intercepts of Gotabaya's phone records (which I maintain may have been recorded illegally), and satellite images of Wanni, where the final battle took place, will help. 

Is it wise to produce evidence of illegal interception - if it does exist - to the Justice Department? (Read the fourth article, 'Reply to Ryan Goodman 4 of 4 - the U.S position on Sri Lanka') 

Moreover, Goodman believes that "Sri Lanka’s historic defeat of an insurgency is emerging as a competing model to US counterinsurgency and counterterrorism strategy." He is very concerned regarding this. Furthermore, he points out "... if adopted [the Sri Lankan Model] by other militaries, risks counterproductive and blowback effects to the detriment of US interests."

How come? Is he not politicizing humanitarian law with US interests in effect undermining his own credibility as professor in law? (Read the third article, 'Reply to Ryan Goodman 3 of 4 - Politics behind')
Goodman has gone markedly very far away from the main intention of the Caucus and his discipline. For the clarity of Goodman's argument, a lot of compromises have made to the truth of the final phase. (Read the second article, 'Reply to Ryan Goodman 3 of 4 - What does he leave-out')

Some Context

The war in Sri Lanka finished on 18th of May 2009. Five years after its conclusion, on the ground in Sri Lanka especially where the final battles took place, a lot has changed progressively. Demining of about 5,000 sqkm has almost complete, resettlement of about 500,000 IDPs has been completed, child soldiers received speedy education programs and have been given jobs and reintegrated into their respective communities and micro livelihood programs were made available to those who affected.

This is not to say there are no post-war issues in Sri Lanka. According to the established doctrine of transitional justice, there are some classic post-war issues still  in Sri Lanka; political impunity of victors, an increasingly authoritarian attitude at constitutional level, the absence of an transparent inquiry into the truth of the final phase, a lack of witness protection laws, a handful of cadres are still in detained, there are polarizing figures on all sides, especially among majority Buddhists and hate speeches. Issues which are uniquely Sri Lankan are also there, such as land issues and demarcation of land for High Security Zones. This has resulted in the delay of some resettlement as well.

However, in general the country is buzzing with foreign investments and infrastructure developments. These have resulted in the country being lifted to a lower middle income country. Some academics, including the western academics, Dr. Kruglanski and Dr. Gelfland, have also recognized these unparalleled developments, being made by the post-war administration in Sri Lanka. 

Meanwhile, internationally, annual attempts by powerful nations and advocates of blind-transitional justice  bring the country before the General Assembly making the wound raw again every year. Some individuals have been accused of war crimes and crimes against humanity since 2009. This approach is also being favored by most of the prominent NGOs.

The US, the initial and main helper of Sri Lankan authorities of getting rid of the terrorism in the country, has also started showing some sign of resentment recently. Since China and Russia stand solidly with the government of Sri Lanka any international investigation seems a highly unlikely outcome. The Sri Lankan administration is asking why it needs the approval of a third party when it knows it does not need that.

Gotabaya has become the victim of all this as he is regarded as the mastermind behind the successful CC operation in Sri Lanka. 

The former Army Chief of Sri Lanka, General Sarath Fonseka, who led the CC Operations for the administration under the guidance of Gotabaya, has become bitter with him and has said publicly he is willing to testify against him in any international court on 13 December 2009.

Interestingly, Fonseka announced this after encountering some US personal from the Department of Homeland Security in October 2009, while he was visiting his family members in US.

Fonseka's statements, the immediate after the conclusion of war, supporting Gotabaya and every aspect of the operations, long delay to come clear if he had known any misconduct by the Sri Lankan Army, and how the sequence of events unfolded after the meeting of US personals from Department of Homeland Security, have make his stance very 'sinister'.

Furthermore, the very next day after his public announcement -this is on 14 December - he was sitting down with the US Ambassador to Sri Lanka, Patricia Butenis, having a lunch. These details were revealed on a leaked classified cable on Wikileaks. (Read further, here)

Among many words, which were dictated to the US State Department by Patricia later on that day, 'Regime Change' was also included.

For me, this is the most intriguing US move in this whole saga.

For those who interested in back-door diplomacy and bulling of small guys by the big one, and for those who think this whole account is about the victims of war and humanitarian effort of the US and international communities, finding out who met with Sarath Fonseka and what was discussed would be a treat! Probably, we will never know.

After all those mentioned positive and negative, national and international developments in post-war Sri Lanka, Ryan Goodman comes with all legal avenues available to indict Gotabaya back to US. 

In the next article I analyse what he leaves out from his writings, thus compromising the truth of the final phase.

Acknowledgment: edited and proofread by Roisin Ni Caoimh 

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