The California District Court case against Gota



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Roy Manojkumar Samathanam


by C.A.Chandraprema


The two cases filed against Gota in California gave him, as a potential presidential candidate, a great deal of publicity. For nearly two weeks, Gota was the center of all attention in the country. The details of the case filed by Roy Manojkumar Samathanam under the 1991 Torture Victim Protection Act is out in the public domain but the plaint filed by Ahimsa Wickrematunga has not been made public yet. It must be said that the lawyers appearing for Samathanam have written the Plaint well, providing for the requirements of the law they were invoking. What the Plaint says about Samathanam’s case is as follows:


In 2005, Roy Samathanam travelled to Sri Lanka and married the woman who is now his wife and stayed back in Sri Lanka. During this period, Samathanam assisted a friend with the importation of goods for a computer electronics shop. In September 2007, his friend imported 600 mobile phones to Sri Lanka that were delivered to Samathanam’s house. In the early hours of September 14, 2007, armed plain-clothed men raided his home and identified themselves as officers of the TID. The officers opened the boxes containing the cellular phones, and told Samathanam that there was a GPS device in the boxes, and that this was illegal. The officers told him that if he paid them approximately 25,000 Sri Lankan rupees they would leave him alone; if not, they would take him to the TID headquarters for interrogation.


When Samathanam told the officers he did not have the money to pay for his release, they arrested him. He was taken to TID headquarters and handcuffed to a chair in an office, and questioned about the shipment of cellular phones. He was then taken to the office of Sergeant Abdeen, where he was handcuffed to a desk. Between September 2007 and November 2008, Samathanam was detained by the TID. The first eight months—from September 2007 to April 2008 he was imprisoned at the TID Detention Center in Colombo. He was isolated from local Sri Lankan prisoners and held with a few other foreign nationals in Sergeant Abdeen’s office. He was kept handcuffed to a desk at all times, and forced to sit or lie on the floor in a painful position. He was deprived of food and water and was frequently deprived of his diabetes medication causing him sometimes to urinate himself.


Approximately two or three times a week, guards would enter Sergeant Abdeen’s office to beat and interrogate Samathanam and other detainees. The guards beat him with metal pipes or hard rubber clubs. They yelled at him to confess that he was a member of the Tamil Tigers. These beatings and prolonged stress-positions caused Roy to suffer severe physical pain—he is disabled to this day. The torture was also psychological. Throughout Samathanam’s detention, the TID officers subjected him to threats and ethnic insults. They threatened to arrest and rape his wife and demanded that she pay a bribe to secure his release. They threatened to shoot him in his head. They also forced him to watch as they stripped other detainees naked and beat them.


On or around December 17, 2007, Samathanam overheard a phone call between Officer-in-Charge Prasanna de Alwis and Defence Secretary Gotabaya Rajapaksa. They were discussing his case. Later that evening, Roy received a particularly brutal torture session at the hands of TID officers. He was told to kneel down, and kicked repeatedly in the stomach, repeatedly yelling and beaten with the butt-ends of their T-56 assault rifles and punched and kicked in the face, abdomen, arms, and legs. Around May 2008, Samathanam was transferred to the TID’s Boosa Detention Center where he was kept in solitary confinement in a small cell without a toilet or water. He was forced to urinate in a bottle and defecate in a plastic bag. Each day, Samathanam’s captors took him to an interrogation room for questioning where he was forced to watch the brutal torture of other detainees.


In late July 2008, Samathanam was temporarily taken back to the TID detention center in Colombo where he wrote a false confession that he had imported an illegal GPS device for the LTTE. He was charged on or about November 4, 2008 with illegally importing a GPS device and aiding and abetting the LTTE—based on his forced confession. After nearly three years in continuous custody during which time Roy was denied bail and a substantive trial had not started, Roy’s lawyer negotiated a plea agreement. On August 19, 2010, in order to stop the torture and threats against his family, he pleaded guilty to possession of a GPS device and paid a fine of 500,000 Sri Lankan rupees (approximately $2,860 USD). The other charges were dropped. Samathanam was released from detention on August 27, 2010.


Plastering chinks in the story


The reason why we said that this plaint has been well written is because of the strategic interventions made in the narrative to portray Samathnam’s innocence and Gota’s guilt and to meet the requirements of the law they were invoking. For example, saying that the TID officers who first arrested him had solicited a bribe of Rs. 25,000 to leave him alone, is obviously aimed at establishing that Samathanam was an innocent who was not arrested for any actual terrorist related activity but only because he failed to pay a bribe for his release. Samathanam was arrested in September 2007. In January 2008, the FBI declared the LTTE to be the deadliest terrorist organization in the world outranking even Al Quaeda. For Samatham to be even suspected of having anything to do with such an organization would skew his entire case. However when it is said that those raiding his house had tried to obtain money from him, and had arrested him only after he failed to pay the bribe,that puts a different colour on the whole thing.


There are certain incongruities in the story Samathanam relates. He claims to have assisted a friend with the importation of goods for a computer electronics shop. If his friend was running a computer electronics shop, why would he need the help of an expatriate from Canada to import his merchandise? Mobile phones are not imported to Sri Lanka from Canada. And why was this merchandise delivered to Samathanam’s house instead of the trader’s shop or house? If Samathanam was arrested, what happened to this friend? Was he too arrested? It is very unlikely that the TID would have attested only Samathanam without going after the main individual concerned. After all, Samathanam says the goods he was caught with were actually imported by his friend. The Plaint is completely silent on what happened to the friend. This raises the question whether this ‘friend’ really existed at all.


The Plaint avers that Gotabaya Rajapaksa is liable under the command responsibility doctrine for the violent abuses inflicted on Samathanam by his subordinates in the Sri Lankan military and police forces. It goes on to say that at all relevant times, the Secretary of Defense stood at the pinnacle of the Sri Lankan military and police forces, reporting directly to the President. The Secretary of Defense exercised effective control over a chain of command extending down to the officers at the TID Detention Center and Boosa Detention Camp who abused the Plaintiff. Samathanam also makes the claim that on or around December 17, 2007, he overheard a phone call between Officer-in-Charge Prasanna de Alwis and Defendant Gotabaya Rajapaksa discussing his case. In December 2007, according to Samathanam’s own account, he was detained in Sergeant Abdeen’s office in the TID Detention Center along with some other foreigners. What is the likelihood that the Officer-in-Charge of the TID would talk to the Defence Secretary from a Sergeant’s office?


Furthermore, why would the OIC of the TID talk to the Defence Secretary about a man who was arrested for no reason and only because he failed to pay a bribe? As Samathanam states, if he had given the policemen who raided his house the then equivalent of just 250 USD, he would not have been arrested at all. Since he was a complete innocent who was arrested only because the TID officers did not get their bribe, what was so important about Samathanam that the Secretary Defence needed to know about him?  


The Plaint states that under the doctrine of command responsibility, Gotabaya Rajapaksa is liable for the violent abuses inflicted on Samathanam by his subordinates. In order to establish liability under the doctrine of command responsibility, Gota’s awareness of Samathanam’s arrest would be of pivotal importance. In the landmark 2013 case of the Prosecutor v. Momcilo Perisic in the International Criminal Tribunal for the former Yugoslavia (ICTY), it was firmly established that ‘specific direction’ is an element of aiding and abetting liability. When it comes to concepts like command responsibility and superior responsibility, it is obvious that those being referred to are those in immediate command of the perpetrators of the crime.


Whether an official far removed from ground level implementation can be held liable for anything that happened is still unclear. Doctrines like command responsibility and superior responsibility have been applied hitherto only to non-Westen actors. Those who have been hauled before the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Ruwanda (ICTR), the International Criminal Court (ICC) and numerous other international criminal courts set up by the West, are former leaders of nations defeated by the West. The law applied by these courts keeps changing according to the foreign policy needs of the Western powers that run those institutions. Be that as it may, the Appeals Chamber of the ICTY has held that a conviction on the basis of command responsibility would require firstly the existence of a superior-subordinate relationship; secondly, the superior would have to know that the criminal act was about to be or had been committed; and thirdly, the superior should have failed to take measures to prevent the criminal act or punish the perpetrator thereof.


The command responsibility


doctrine


The Appeals Chamber of the ICTY also held that a superior cannot be held liable under the doctrine of command responsibility unless he exercised effective control over his or her subordinates and that indicators of effective control are more a matter of evidence than of substantive law. That is obviously why we have this story about the TID OIC speaking to the Defence Secretary from a police Sergeant’s office within earshot of the detainees held in that office. The Centre for International Law Research and Policy funded by the European Union and the Norwegian Ministry of Foreign Affairs has published a set of guidelines on command responsibility which states among other things that:


*         Where superior responsibility is alleged, the Prosecution should plead the following material facts: (1) the relationship of the accused to his subordinates; (2) the acts and crimes of his alleged subordinates; (3) the criminal conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates; and (4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent the crimes or to punish his subordinates thereafter. These are material facts which must be pleaded with a sufficient degree of specificity – Note the phrase ‘sufficient degree of specificity’.


*         An individual’s superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. The weight to be given to that indicium however depends inter alia on the geographical and temporal circumstances. This means that the more physically distant the commission of the acts was, the more difficult it will be, in the absence of other indicia, to establish that the superior had knowledge of them. Conversely, the commission of a crime in the immediate proximity of the place where the superior ordinarily carried out his duties would suffice to establish a significant indicium that he had knowledge of the crime. (One can see why a direct link over the telephone between the OIC TID and the Defence Secretary is being alleged. In actual practice, it is highly unlikely that the Defence Secretary would talk directly to an OIC over the heads of his superiors and vice versa.)


*        A superior can be held responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. If a commander has exercised due diligence in fulfilling his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. A superior may only be held liable for the acts of his subordinates if it is shown that he ‘knew or had reason to know’ about them. A superior may be held responsible through the principles of superior responsibility only if specific information was available to him which would have put him on notice of offences committed or about be committed by his subordinates. (This is why the OIC TID was said to have discussed Samathanam’s case with the Defence Secreatry when in fact there was no case to be discussed and Samathanam was completely innocent.)


Thus one can see that Samathanam’s Plaint has sought to plaster over all the chinks in the story and to provide for the requirements of the law he was invoking. Samathanam’s Plaint has been filed under the 1991 Torture Victim Protection Act which specifically states the following:


"A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred."


 


"No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose."


 


Failure of US intervention?


Samathanam has provided for these requirements as well with the following arguments – "Seeking to exhaust judicial remedies in Sri Lanka would also expose Plaintiff to a grave risk of reprisal: Gotabaya Rajapaksa continues to exert a powerful influence over extremist nationalist groups and elements of the military and police forces. At the same time, corruption, bias, and a lack of judicial independence still mark the Sri Lankan legal system. Political and military leaders enjoy effective impunity against any legal accountability for human rights abuses. Given the lack of judicial independence and the risk of reprisal, Plaintiff has no adequate and available remedy in the courts of Sri Lanka."


And further that "Any applicable statute of limitations is tolled by the exceptional circumstances of (1) Plaintiff being detained and incapacitated until August 27, 2010, (2) Defendant retaining control of the military and police forces until January 2015, and (3) Defendant’s infrequent return trips to the United States after leaving office. All three circumstances rendered it impracticable—and unsafe—for the Plaintiff to bring this action at an earlier date."


Such claims sit oddly beside the fact that US Secretary of State John Kerry visited Sri Lanka in May 2015 after the yahapalana government was installed in power and soon after the 19th Amendment was passed and declared that the American people stands with the new Sri Lankan government in its push for democratic reform. Before Kerry arrived, Nisha Biswal the then United States Assistant Secretary of State for South and Central Asian Affairs arrived in Sri Lanka just three weeks after the yahapalana government was installed in power, accompanied by the Deputy Assistant Secretary of State for South Asia Atul Keshap. Thereafter, Biswal was a frequent visitor to Sri Lanka coming here once every few months so long as the Obama Administration remained in office. After January 2015, Sri Lanka became virtually a conquered territory of the USA.


After January 2015, the yahapalana government has been relentlessly persecuting the Rajapakasas and Gotabhaya Rajapaksa himsef has managed to avoid being jailed only through the intervention of the courts. To argue in such circumstances that seeking to exhaust judicial remedies in Sri Lanka would have exposed the Plaintiff to a grave risk of reprisal is simply to make an excuse for not seeking redress in Sri Lanka. Samthanam’s argument that corruption, bias, and a lack of judicial independence still mark the Sri Lankan legal system and that political and military leaders enjoy effective impunity against any legal accountability for human rights abuses sits oddly besides the fact that even Sri Lanka’s highest ranking soldier the Chief of Defence Staff Ravi Wijeguneratne has spent time in remand over alleged human rights abuses. People have lost track of the number of armed forces personnel who have spent time in remand under the present government.


The USA spent a great deal of money in effecting regime change in Sri Lanka. By Secretary of State John Kerry’s own admission, his Admnistration had spent $585 million in promoting democracy across the globe in 2015, and he specifically mentioned the ‘democratic gains’ in, places like Sri Lanka, Nigeria, and Burma as having been among the results achieved. If an American court accepts that Samthanam would have been exposed to the risk of reprisals if he sought legal remedies in Sri Lanka after January 2015, that would be an acknowledgement of an American failure and would contradict the claims made by the then American government about the democratic gains made in Sri Lanka through their intervention.


To argue that Gota made only infrequent return trips to the United States after leaving office and that was one reason why an action could not be brought against him at an earlier date is specious. In actual fact Gota has probably made more visits to the USA after January 2015, than Nisha Biswal has made to Sri Lanka during the same period. All visits made to the USA by Gota were well publicized and he has spent weeks and months at a time in the USA during the past four years and notice could have been served on him on any one of those visits. The fact that cases have been filed against Gota only now indicates that those cases may have more to do with the upcoming presidential elections than with anything else.


 
 
 
 
 
 
 
 
 
 
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