Genocide charges against Sri Lanka officials ready – Fein

Bruce Fein, a former U.S. Deputy Associate Attorney General and currently Counsel for a US Tamil group said in an interview mid December that a 400+ page model indictment charging Sri Lanka officials for genocide against Tamils will be ready to be submitted to the U.S. Justice Department first week of January.

He added that the document describes the motivational context, catalogues crimes, and constructs legal arguments establishing culpability of a U.S. citizen and a US greencard holder for the crime of genocide against Tamils in Sri Lanka under the U.S. Genocide Accountability Act (18 U.S.C. 1091).

Fein is currently counsel for Tamils Against Genocide, a US based group.

TamilNet: Can you describe the legal process your group has chosen to bring Sarath Fonseka and Gotabhaya Rajapaksa to justice in US courts?

Fein: The United States Genocide Accountability Act of 2007 (GAA) makes Fonseka and Gotabhaya Rajapaksa subject to a genocide prosecution in United States courts even though the genocidal acts against Tamils occurred in Sri Lanka.

The United States may constitutionally assert extra-territorial jurisdiction over a certain category of universally condemned crimes, which include genocide and torture. The United States recently brought a torture prosecution against the son of Liberia’s Charles Taylor for torture perpetrated in Liberia. They are criminally culpable under the doctrine of command responsibility for criminal acts of their subordinates which they should have known about and prevented or neglected to punish after-the-fact.

TAG [Tamils Against Genocide] has virtually completed a model federal grand jury indictment of Fonseka and Rajapaksa charging violations of the GAA. The facts demonstrating genocide have been compiled from TAG’s independent research and investigations. The two were selected as defendants in lieu of President Mahinda Rajapaksa because Gotabhaya Rajapakse is a US citizen and Sarath Fonseka is a permanent resident alien for whom the United States is responsible as moral, political, and legal matter.

The model indictment will be presented to the new United States Attorney General appointed by President Obama and the new Secretary of State. The two appointees hold the keys to a genocide prosecution, which only the government can initiate.

TamilNet: Do U.S. courts have jurisdiction over acts violating international law or U.S. domestic law in Sri Lanka's sovereign territory?

Fein: The model indictment describes the culture of genocide in Sri Lanka built on the doctrine of Sinhalese Buddhist supremacy celebrated in the Mahavamsa, the teachings of Dharmapala, and the exhortations of contemporary Buddhist monks.

The indictment then collects three categories of genocidal acts intended to destroy Tamil groups in whole or in part in various villages or municipalities in the northeast based on ethnicity or religion: extra-judicial killings, including disappearances; serious bodily injury; and, creating conditions of life intended to cause the physical destruction of Tamil groups, for example, starvation, malnutrition, impaired medical care or medicines, never-ending physical, economic, or physical insecurity, massive and repeated internal displacements, or Sinhalese Buddhist colonization.

The genocidal acts TAG has chronicled in the draft indictment surpasses by far the genocidal evidence in the charges against former Bosnian leader Radovan Karadzic.

TamilNet: In the U.S., criminal indictments can only be initiated by the Department of Justice. What is TAG's next step to convince the Justice Department to begin a grand jury investigation?

Fein: TAG will seek to enlist the support of Members of the House and Senate to champion the genocide indictment with the Attorney General and Secretary of State through letters, confirmation hearings, and otherwise. TAG will also seek congressional hearings on the ongoing Sri Lankan genocide. It will also publish articles and meet with editorial boards of newspapers to rally public United States support for the genocide indictments.

TamilNet: Is the international climate conducive for your legal action, and do you think Obama administration with Eric Holder as the new attorney general will be inclined to support this effort?

Fein: The genocide of Sri Lanka’s Tamils has now become mainstream thinking in Tamil Nadu, Malaysia, South Africa, and elsewhere. It explains in part Sri Lanka’s eviction from the United Nations Human Rights Council. Amnesty International and Human Rights Watch have also been vocal detractors of Sri Lanka’s human rights atrocities.

Further, the New York-based Genocide Prevention Project has included Sri Lanka as one of the eight "red alert" countries where genocide and other mass atrocities are underway or risk breaking out. Also, the Obama administration was handed a policy report on genocide with specific recommendations from former Secretary of State Madeleine Albright. This is likely to bring Sri Lanka’s genocide into U.S. focus.

TamilNet: Besides the U.S.Group, who else is supporting your legal action?

Fein: TAG has received support from U.K. expatriates, and Australia. We welcome the support of other individuals or organizations. But TAG will not waver from its exclusive feasible goal of genocide indictments and prosecutions of Fonseka and Rajapaksa in the United States undistracted by a United Nations organized plebiscite on Tamil independence, or a prosecution before the International Criminal Court. TAG has one goal and one goal only.

TamilNet: Are you pursuing any other legal avenues, and if so, can you elaborate?

Fein: The Torture Victims Protection Act (TVPA) authorizes any person or their legal representatives to bring a civil suit for damages against any other person complicity in their extra-judicial killing or torture under color of foreign law wherever the wrongdoing occurs. The advantage of a civil suit is that the initiative does not require the approval or support of the U.S. government. Once adequate funding for the litigation is secure, the contemplated TVPA suits would involve representatives of the murdered Trinco five students and of the seventeen murdered Action Against Hunger workers. Damages could exceed $50 million. As with the GAA, the TPVA applies extra-territorially to wrongdoing perpetrated in Sri Lanka by Sri Lankans against Sri Lankans.

TamilNet: What is your response to the note on the Secretariat for Coordinating the Peace Process (SCOPP) website by the Sri Lankan Secretary General Prof. Rajiva Wijesinha on the model genocide indictment against Sri Lanka officials?

Fein:

On December 15, 2008, Professor Rajiva Wijesinha, Secretary General, Secretariat for Coordinating the Peace Process, an echo chamber instrumentality of the Government of Sri Lanka, sallied forth on his website (www.peaceinsrilanka.org) with an awesome arsenal of irrelevancies and non sequiturs to confute my model genocide indictment.

The Professor’s sophistry builds on the casuistry taught to every first year law student: If the law is against you, argue the facts; if the facts are against you, argue the law; and, if the law and the facts are against you, confuse the issue. Accordingly, Professor Wijesinha’s delivers an indictment against the LTTE as a purported defense to the Rajapaksa-Fonseka genocides. The genocide prosecution sought against Sudanese President Omar Bashir has rejected such a defense theory to a charge of genocide. In addressing the model genocide indictment I have prepared, this is what Professor Wijesinha adduces to persuade the reader to return a verdict of not guilty: not a single word or fact.

Indeed, the Professor never denies the Rajapaksa-Fonseka genocides. He simply bloviates: “Fein may see himself as an expert in pressing the right buttons, but [Tamils Against Genocide] should rethink squandering its funds on such characters.”

I challenge Professor Wijesinha or any official in the Government of Sri Lanka to debate me over the model genocide indictment at any time and in any venue of his or their choosing, including Colombo. I promise to arrive armed only with the truth; but my opponent may choose to come protected by the Sri Lankan Army and Pillaiyan. I am eager for a reply to my debate challenge. Silence will speak volumes of guilt.