Posted on December 9th, 2009

By Noor Nizam, Sri Lanka Peace Activist, Political Activist and Freelance Journalist ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” Canada, Dec. 8th., 2009.

In response to the so-called allegations made by the U.S report that Dr.Palitha Kohona then Secretary to the Ministry of Foreign Affairs was involved in orchestrating the killing of the two LTTE political figures after they had negotiated to surrender, Professor Don Rothwell has expressed his opinion that diplomatic immunity should be wavered and investigations carried out on the role played by Australian dual citizen and former Sri Lankan Foreign Secretary who is presently holding office as the permanent representative for Sri Lankan at the UN. This statement is published in datelined [TamilNet, Tuesday, 08 December 2009, 12:10 GMT].

ƒÆ’-¡ƒ”š‚ In his opinion the professor is citing the principle of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-command authorityƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚, which holds that a person in a position of power who is aware of war crimes being committed can be held liable.

ƒÆ’-¡ƒ”š‚ Law Professor Don Rothwell seems to have missed the Law point in his statement (opinion).

ƒÆ’-¡ƒ”š‚ Legal Character of Command Responsibility and its Status Under Customary International Law clearly states the following:

ƒÆ’-¡ƒ”š‚ Clause 333.

ƒÆ’-¡ƒ”š‚ That military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law. This criminal liability may arise either out of the positive acts of the superior (sometimes referred to as “direct” command responsibility) or from his culpable omissions (“indirect” command responsibility or command responsibility strictu sensu). Thus, a superior may be held criminally responsible not only for ordering, instigating or planning criminal acts carried out by his subordinates, but also for failing to take measures to prevent or repress the unlawful conduct of his subordinates. As noted in the Report of the Secretary-General on the establishment of the International Tribunal:

A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew, or had reason to know, that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them.

ƒÆ’-¡ƒ”š‚ The missed law point is that Dr. Palitha Kohona was not a military officer, but a senior civil servant and the alleged army or security personnel were not Dr. Palitha KohonaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s SUBORDINATES.

ƒÆ’-¡ƒ”š‚ Therefore the learned Professor is advised not to make statements that can amount to civil law violations of an individualƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s right. Professor Don Rowthwell should therefore kindly tender an apology to Dr. Palitha Kohona for the malicious statement he had made who is also a respected citizen of Australia.

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