by Lakshman I. Keerthisinghe Courtesy  Ceylon Today

As for the ways by which rulers over others may become implicated in their crimes, there are two …tolerance and protection…we must hold that a person who knows of a crime and is able and bound to forbid it and does not do so, himself commits a crime … the people or the king are not rigidly bound to surrender the offender, but they must either surrender or punish him.

– GROTIUS (1652) as quoted in Cherif Bassouni -International Criminal Law (3rd Edition 2008)

Recently media reported that Human Rights groups led by the International Truth and Justice Project (ITJP), in South America have filed lawsuits in Brazil and Colombia against Sri Lanka’s former Ambassador in Latin America including Brazil, Colombia, Peru, Chile, Argentina and Suriname General Jagath Jayasuriya, accusing him of war crimes. Carlos Castresana Fernandez, the lawyer who is coordinating the effort, said petitions will be filed in Argentina, Chile and Peru in the coming days, adding that authorities in Suriname had refused to accept the petition. Obviously the lawyer has been retained by the diaspora with their unlimited funds.

The suits say Jayasuriya was the Commander of the Vanni Security Force from 2007 to 2009. According to the suits, Jayasuriya oversaw an offensive from Joseph Camp in the northern town of Vavuniya. The ITJP said it interviewed 14 people who survived the torture or sexual violence at the camp. “There is no way General Jayasuriya can claim not to have known that torture routinely occurred in his camp; there were purpose built underground torture chambers, equipped with manacles, chains and pulleys for hoisting victims upside down. If the detainees could hear each other screaming at night from adjacent buildings, so could he,” ITJP’s Executive Director Yasmin Sooka said.

As all these allegations are hearsay they remain to be proved beyond reasonable doubt under International Criminal Law. It must be noted that in July 2010, Sooka was appointed to the three-member panel of experts advising the UN Secretary General on accountability for war crimes committed during the final stages of the war in Sri Lanka. The Darusman report was published in May 2011. Suspicion surrounds this report as there is a belief that the experts were misled by the Tamil Diaspora who were hell bent to take revenge of the armed forces for defeating the LTTE and fabrication of false evidence using former LTTE cadres now domiciled abroad cannot be ruled out.

Information of crimes

In the meantime media reported that Minister Field Marshal Sarath Fonseka said, “I received complaints that Jayasuriya was engaged in crimes as Vanni Commander with regard to those who were arrested. He continued the same strategy even after he was promoted as Army Commander. I have information regarding those who committed the crimes. I am ready to explain the crimes committed in detail if proper legal action is instituted.” Meanwhile Sri Lanka Army spokesman Brigadier Roshan Seneviratne has defended General Jayasuriya saying the allegations were baseless. Of course Sarath Fonseka has an axe to grind with Jayasuriya for assisting in Fonseka’s arrest during the previous regime.

In the above backdrop, this article attempts to analyze the Doctrine of Command Responsibility as applicable to the above statements. The origins of Command Responsibility date back centuries. In the 6th century B.C., Sun Tzu in his Ping Fa – “The Art of War” wrote about the duty of army commanders to ensure that their subordinates conducted themselves in a civilized manner in armed conflict (Wikepedia).

The Additional Protocol I (‘API’) of 1977 to the Geneva Convention of 1949 was the first international treaty to comprehensively codify the doctrine of Command Responsibility. Article 86(2) states the fact that a breach of the Convention of the Protocol was committed by a subordinate does not absolve his superiors from responsibility if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and “if they did not take all feasible measures within their power to prevent or repress the breach.” Thus Field Marshal Sarath Fonseka who claims to have received complaints that Jayasuriya was committing such breaches, but failed to take prompt action to prevent or repress such breaches himself becomes culpable.

Codified

The doctrine of Command Responsibility has recently been codified in Article 28 of the Rome Statute of the International Criminal Court (ICC). Article 28(a) imposes individual responsibility on military commanders for crime committed by forces under their effective command and control if they either knew or owing to the circumstances at the time, “should have known” that the forces were committing or about to commit such crimes. Thus, literally interpreted Article 28(a) of the Rome Statute imposes a stricter standard of knowledge than Article 86(2) of the Additional Protocol I (‘API’) of 1977 to the Geneva Convention.

Sri Lanka is not a State party that has ratified or acceded to the Rome Statute. Therefore the International Criminal Court has no jurisdiction over the territory of Sri Lanka. Article 12(1), under “Precondition to the exercise of jurisdiction” states: “A State which becomes a party to this Statute thereby accepts the jurisdiction of the Court with respect to crimes referred to in Article 5”. Article 5.1 of the Rome Statute grants jurisdiction to investigate (a) crimes of genocide, (b) crimes against humanity, (c) war crimes and (d) crime of aggression.

During the previous regime a law suit based on Command Responsibility was filed in the United States District Court of Columbia under the Torture Victims Protection Act and attempts were made to serve summons on former President Mahinda Rajapaksa. Under the Foreign Sovereigns Immunity Act of the United States, it was not possible that a foreign Head of State could be issued with summons by a US Court.

The then Secretary to the Ministry of Justice had quite properly refused to receive such summons as this act is a direct violation of the sovereignty of our country.

It is to be noted that under International Humanitarian Law, international lawsuits across jurisdictions are complicated.

International lawsuits

Spain’s Carlos Castresana Fernandez, the lawyer who has coordinated efforts against Jagath Jayasuriya, is one of the lawyers who worked on cases against Chilean General Augusto Pinochet and Argentine General Jorge Rafael Videla. Gen Pinochet spent 18 months under arrest in London fighting extradition to Spain. Yasmin Sooka says Jagath Jayasuriya will have diplomatic immunity for as long as he’s an ambassador. “We’ve heard he held on to the ambassadorial post and that he will probably resign when he reaches Colombo – immunity will cease once he steps down from the post – But what’s wonderful is the Latin American countries can actually file an arrest warrant, they can put him on an Interpol red list and ask for his extradition – and really he will become a prisoner on the island of Sri Lanka.” This statement is erroneous as Foreign Courts have no jurisdiction to prosecute a national of another sovereign State for alleged offences committed in his native land unless such offences involve nationals of such countries in which the law suits are filed. Even if such an arrest warrant is filed the Sri Lankan Government is not obliged to assist in the execution of such warrants issued without proper jurisdiction.

It was also reported that addressing the troops at the Colours Awarding Ceremony of Sri Lanka Army held at the Army Headquarters in Panagoda, President Maithripala Sirisena said the government is bound to protect the dignity and pride of the defence sector including our tri-forces while confronting the alleged human rights violations purported to have happened during the last phase of the war adding that he would never let the security sector including tri-forces to be weakened in any way.

In conclusion, as foreign courts or even the ICC without UNGA intervention has no jurisdiction to hear cases against Sri Lankan forces that saved the nation from the clutches of the brutal LTTE. The government is obliged to defend and protect the war heroes from the sinister machinations of the Tamil Diaspora.

The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo)