Attorney General Dappula De Livera appears to have paved the way for members of the armed forces and the security establishment to be prosecuted for war crimes and crimes against humanity as defined in international humanitarian law, under local jurisdiction.
On July 1, President Maithripala Sirisena‘s hand-picked Attorney General Dappula De Livera has instructed the acting IGP to produce former Defence Secretary Hemasiri Fernando and IGP Pujith Jayasundera who was sent on compulsory leave before a Magistrate as murder suspects implicated in the killing of more than 250 people on Easter Sunday.
“This incident is one of the gravest crimes in Sri Lanka’s criminal history,” the letter from the AG states, adding that negligence by both former officials who held important roles in the security establishment when the April 21 suicide bombings took place, had led to ‘grave crimes against humanity’ under International Humanitarian Law (IHL).
The reference in the Attorney General’s letter marks the first time the country’s state prosecutors have acknowledged that crimes under IHL can be prosecuted under local laws, rather than as “murders” or “abductions” under Sri Lanka’s ordinary Penal Code.
It is also the first time since allegations of war crimes and indiscriminate shelling against civilians trapped in the No Fire Zone during the last stage of the war in 2009 surfaced several years ago, that lawyers for the State have conceded that the mass killing of 250 people constitutes a ‘crime against humanity’. According to UN estimates, some 40,000 people including civilians were killed in indiscriminate shelling in the final months of Sri Lanka’s war against the LTTE. The UN has repeatedly referred to this violence as grave violations of International Humanitarian Law.
Contrary to the recent assertion of the chief legal officer of the state, successive Governments have maintained that Sri Lankan security officials cannot be hauled up for war crimes and crimes against humanity. Both these crimes are routinely tried at the International Criminal Court in the Hague, but Sri Lankan troops have never been made vulnerable to the prospect of prosecution in that jurisdiction by virtue of the fact that the country is not a signatory to the Rome Statute of 2003 which set up the Hague Court. However Sri Lanka is a signatory to the Geneva Convention which defines IHL and sets out the principles and customs of warfare.
The letter to the acting IGP, released by AG De Livera’s Coordinating Officer State Counsel Nishara Jayaratne also ordered him to provide explanation within a day as to why Fernando and Jayasundera have not been arrested and produced as suspects after instructions to that effect went out on 27 June 2019.
According to the June 27 letter to the Acting IGP sent by the Attorney General, based on evidence gathered so far the ex defence secretary and suspended IGP can be charged under sections 296 (whoever commits murder shall be punished by death), 298 (Causing death by negligence), 327 (acting in a manner that hurts or endangers others), 328, 329 and 410 of the penal code.
While the inaction of the two officials certainly contributed to security failures that might have mitigated the loss of life and damage from the bombings, legal observers noted that AG De Livera was quite clearly picking and choosing officials who were aware of the intelligence warnings. State Intelligence Services head SDIG Nilantha Jayawardane a well known confidant and security briefer to President Sirisena is going to escape prosecution on the President’s orders, Colombo Telegraph learns.
Hemasiri Fernando told the Parliamentary Select Committee this month that it was not the practice for him to brief Sirisena on intelligence matters, since the SIS head had told him that he (Jayawardane) personally provided the briefings and had been in the practice of doing so since 2015. However Sirisena has blamed Fernando and IGP Jayasundera for the failure to keep him informed of detailed security warnings. Colombo Telegraph has previously revealed that SDIG Jayawardane had briefed President Sirisena on at least 3 occasions prior to the blasts. After Fernando and IGP Jayasundara provided damning testimony before the Parliamentary Select Committee probing the Easter blasts, detailing humiliating accounts of Sirsiena’s disastrous handling of security affairs, the President’s vendetta against the two officials has intensified sources close to the President’s Office told Colombo Telegraph.
Colombo Telegraph also learns that President Sirisena was outraged when AG De Livera originally ordered the CID to launch criminal investigations into the conduct of the SIS Director and his pet as well. In subsequent “studies” of the brief the AG has ensured that Sirisena’s favourite officers including Jayawardane were omitted from the list the CID was ordered to investigate as being culpable for the Easter attacks.
“If you study the AG’s conduct carefully everything becomes clear,” said one senior attorney who did not wish to be named. “AG Dappula is going after the political targets Sirisena wants him to go after. The Bond Scam suspects to humiliate the UNP Government before elections. Hemasiri and Pujith Jayasundara who have humiliated him publicly by saying he knew of the security warnings before the bombs went off. And all the while he is delaying and sabotaging cases against the Rajapaksa family – it is very clear what the agenda is.”