BY FAIZER  SHAHEID Courtesy Ceylon Today

A new trajectory has been carved leading into the already existing list of war crimes allegations against the Sri Lankan Army that seeks to reroute the investigations to hold Sri Lanka as a whole accountable. The war crimes charges were filed by South America based International Truth and Justice Project (ITJP) in Brazil and Columbia against General Jagath Jayasuriya who was the Ambassador of Brazil, Columbia, Peru, Chile, Argentina and Suriname.

The charges were filed against Jayasuriya on 29 August, and the Ambassador returned to the country the very next day. Irrespective of Jayasuriya’s involvement in the armed conflict which concluded eight years ago, the former celebrated Army Commander and the present Minister of Regional Development, Field Marshal Sarath Fonseka, has given an interesting twist to the tale by offering to testify against his former comrade.

Background

Since 2009, Sri Lanka has politically and diplomatically evaded pressure by the international community to investigate and prosecute the alleged war crimes charges against the Sri Lankan Army. Various charges were levelled against Sri Lanka for allegedly violating the rules of war as contained in the Geneva Conventions of 1949 and The Hague Conventions.

Although the United Nations Human Rights Commission (UNHRC) had at first passed Resolution S-11/1 commending the progress of Sri Lanka, other resolutions followed calling for accountability over war crimes allegations. Resolution 19/2, Resolution 22/1 and Resolution 25/1 were passed calling for an investigation into the war crimes allegations, each of which was ignored by the Mahinda Rajapaksa regime.

Following the advent of the new regime, the Government agreed to co-sponsor Resolution 30/1 to conduct credible investigations among a host of other matters contained within. The newly installed Government had played a diplomatic game where it originally conceded to the demands of the UNHRC and then deliberately delayed implementing the mechanisms contained within Resolution 30/1. Eighteen months later, the UNHRC passed Resolution 34/1 recognizing Sri Lanka’s slow but steady progress and permitting a further two years for the country to implement all of the recommendations in Resolution 30/1.

However, in between Resolution 30/1 and Resolution 34/1, various conflicting remarks were made by the Government. There had been extensive debates waged on the topic of a Hybrid Court and holding the war heroes accountable. Many of the remarks came from President Maithripala Sirisena who claimed that no soldier of the Sri Lankan Army will be prosecuted for any of the crimes alleged by the international community.

The Sri Lankan Government was no longer upfront about its resistance to the demands of the international community. There was an element of hypocrisy evident in the approach of the Sri Lankan Government, which resembled the nature of the current crop of politicians in Sri Lanka. It was increasingly obvious that the Government was delaying the implementation of the resolution by buying more and more time.

In that backdrop, the ITJP had realized that Sri Lanka was not going to prosecute any of the war heroes, and sought an alternative route to meet the demands of the international community. Instead of prosecuting former President Mahinda Rajapaksa and clan, the ITJP instituted action against General Jagath Jayasuriya for being complicit to war crimes during his tenure as the Commander of the Vanni Forces.

Aftermath of the allegations

Jayasuriya returned to Sri Lanka hurriedly after the case was purported by the ITJP in each of the countriesunder his purview as ambassador for Sri Lanka. The charges against him were filed in Brazil and Columbia, while petitions are yet to be filed in Argentina, Chile and Peru. Only Suriname had downright refused to permit action to be filed against Jayasuriya.

Upon his return to the country, Jayasuriya expressed his dismay at being charged with war crimes stating that he was primarily involved with the rehabilitation and resettlement of Internally Displaced Persons (IDPs) and surrendering combatants. He claimed he was nowhere near the war front. However, Sarath Fonseka claimed to have some incriminating evidence against Jayasuriya and he had no qualms expressing this to the media. He even stated that he was prepared to spill the beans on Jayasuriya. He stated that Jayasuriya had engaged in the commission of crimes during his tenure as the Vanni Commander and he continued with his ways even after.

However, during the Sri Lanka Freedom Party (SLFP) Convention held on 3 September, President Maithripala Sirisena promised that he would strive to protect the nation’s war heroes. Hence he reiterated his promise to the people that he would not abide by the resolution co-sponsored by his Government in Geneva.

Doctrine of Command Responsibility

Sarath Fonseka implied in his statement that Jagath Jayasuriya was a man of many atrocities, and he promised to testify against him in any Court or tribunal. Fonseka also had no qualms stating that the actions of Jayasuriya were isolated and personal and was not representative of the entire Army.

Perhaps Fonseka may have forgotten that Jayasuriya was being charged with command responsibility in the first place, and not for actions of his own volition. Perhaps, Fonseka had forgotten that he was the Commander of the Army during the final stages of the war when the alleged war crimes was said to have occurred.

Command responsibility was instilled through the Geneva Conventions, and in particular, the Geneva Convention of 1929 on the treatment of prisoners of war. Article 26 of the Geneva Convention of 1929 reads: “The Commanders-in-Chief of belligerent armies shall arrange the details for carrying out the preceding articles, as well as for cases not provided for in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.”

Command responsibility, where a superior officer in the armed forces is held not to be absolved from any war crime of a lesser officer, is incriminated under Additional Protocol 1 (Article 87) and the Rome Statute which Sri Lanka has not ratified. However, command responsibility is also recognized in multiple places in the Hague Conventions, to which Sri Lanka is signatory. The Geneva Conventions and the Hague Conventions are recognized as Customary International Humanitarian Law, however, the protocols are exempt unless the country has ratified.

Rule 153 of the Customary International Humanitarian Law states that: “Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.”

This would mean that, should Sarath Fonseka purvey incriminating evidence against Jayasuriya, Fonseka too would have to face the consequences as the Commander of the Army, particularly due to the fact that Jayasuriya was a subordinate at the time.

Why Jayasuriya left Brazil

As a result of command responsibility, Jayasuriya then could be held answerable in the event sufficient evidence is adduced in a Court of Law. However, the sovereignty of Sri Lanka must always be recognized and the rights of its diplomats protected against vested interests. The rights of diplomats are protected under the Vienna Declaration on Diplomatic Relations. Therefore, Jayasuriya was indeed entitled to diplomatic immunity.

The problem lies in an earlier ruling in the case of Ex Parte Pinochet. This is an interesting case surrounding the arrest of a former Head of State, who was accused of enumerated war crimes in Chile.

Augusto Pinochet was a former President and Commander in Chief of the Armed Forces of Chile. He arrived in London, England on 10 March 1998 at an extreme old age seeking medical treatment. By then he had relinquished all his positions except for his position as a lifetime Senator. At the time, a Spanish Judge had filed charges against Pinochet for his alleged misdoings during his presidency and issued an INTERPOL arrest warrant calling for his arrest for alleged acts of torture under the Torture Convention.

He was arrested by the British authorities, but a debate ensued as to whether he should be extradited to Spain. Lawyers argued that Pinochet was entitled to diplomatic immunity and was free from the jurisdiction of the British Courts. In a multi-pronged case, it was decided by the House of Lords that Pinochet was not entitled to diplomatic immunity. He died while in remand with over 300 criminal charges filed against him. Courts had stated that if a person was to be arrested over a crime under Jus Cogens (Peremptory norms), under which war crimes, genocide and crimes against humanity among others fall under; any court can seek to arrest a person.

Being so, had the Brazilian or Columbian Courts decided that Jagath Jayasuriya should have been arrested for war crimes, they could have had him arrested.

Prosecution in the ICC

Had Jagath Jayasuriya been arrested, it is still unlikely if the ITJP could have guaranteed an arrest, especially considering the fact that no legitimate evidence of war crimes has ever been adduced. If any whatsoever, there’s nothing to prove the involvement of Jayasuriya or the troops under his command.

However, the lack of domestic instruments and mechanisms to deal with the highly complex war crimes may not necessarily be a mandate for the local Courts of Brazil or Columbia. The more apt stage to contest such a case would be the International Criminal Court (ICC). The ICC has jurisdiction in respect of the offences of Genocide, Crimes against humanity, war crimes and the crime of aggression.

Problem with the ICC is that, although 139 countries have thus far ratified the Rome Statute, Sri Lanka is not one of them. The Court gains automatic jurisdiction only if Sri Lanka was party to the Rome Statute. If the State is not a party, an allegation of war crimes may be levelled against a citizen of the country only if the State agrees through the Registrar by declaration of intention (Article 12 (2) of the Rome Statute). The same issue arose when the international community purported criminal proceedings against the former President, Mahinda Rajapaksa.

Nonetheless, non-state parties may become prosecutable before the ICC under certain circumstances. For this to work, it is mandatory that there is no domestic judicial system set-up to prosecute on the same charges.

Although, Article 15 of the Rome Statute permits the Prosecutor to file charges only within the permissible jurisdiction of the court, Article 87 requires non-state parties to also cooperate in investigations on matters. Therefore, if the Prosecutor chooses to prosecute on a certain matter concerning Sri Lanka, the Prosecutor shall have authority subject to the other requirements and procedures. This is also a requirement under the Vienna Convention on the Law of Treaties to which Sri Lanka is a party to.

Secondly, under Chapter VII of the UN Charter, the Security Council may authorize holding of any ad hoc tribunals in respect of allegations of war crimes. Should the Security Council pass a resolution, it becomes mandatory for a country to abide by it, or face strict enforceable sanctions as it did in the case of Iran and North Korea recently. Furthermore, Article 94 of the UN Charter requires that all member nations abide by the rulings of the International Court of Justice, failing which; the Security Council may decide what recourse is most suited for the situation. In such an instance, it is permitted to recommend a matter to the ICC for prosecution.

The third situation is where any person accused of war crimes allegations is arrested for the charged offences in a country which is a party to the Rome Statute. This was derived from the ruling in the case of Ex Parte Pinochet where Chile, United Kingdom and Spain were all parties to the Rome Statute. In the case of Jagath Jayasuriya, both Brazil and Columbia are parties to the Rome Statute and should he be arrested in the countries, it is possible to prosecute him for war crimes before the ICC.

Conclusion

It is evident that there are ways and means of arresting Jagath Jayasuriya on allegations of war crimes, but allegations may be filed against any and all persons who had played a major role in the war. This includes former President Mahinda Rajapaksa, incumbent President Maithripala Sirisena, former Army Commander Sarath Fonseka and former Defence Secretary Gotabaya Rajapaksa among others.

Sarath Fonseka, in defying all others in Government and otherwise, holds a grudge against Jagath Jayasuriya for being an ally of Mahinda Rajapaksa during his years in prison. Being so, Fonseka has expressed his willingness to give out evidence. However, he fails to realize that, when he gives out evidence against Jayasuriya, he shall have to absorb the brunt of it purely for his command responsibility.

Perhaps Sarath Fonseka is blinded by his grudge against his enemies during the former regime and does not realize the actual aim of the ITJP. Or perhaps, Sarath Fonseka is willing to lay his life to further humiliate his former comrades and compatriots while holding the Army and country at ransom. In any case, Fonseka may need to realize before making any further moves that, the aim of the ITJP is to utilize Jayasuriya as a pawn to initiate an investigation and later expand it to cover other top officials who played a role in the war.

(The writer is a law tutor and an independent researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom)