A number of active Sri Lankan Tamil diaspora organisations around the world have urged the Secretary of State for Foreign and Commonwealth Affairs to declare Brigadier Sawrna Bothota a ‘persona non grata’ and curtail his diplomatic visa in order to allow the Met Police to arrest him and investigate him for war crimes.

“The first was Major General Prasanna Silva, named in three UN reports as a war criminal. Silva was asked to leave because of the threat of a judicial review. The second was Brigadier Priyanka Fernando, who threatened to decapitate peaceful protestors in front of the Sri Lankan High Commission in London. After he was asked to leave following the intervention of the APPG for Tamils among others and the threat of a judicial review, the FCO accredited Brigadier DBSN Bothota,” they said.

We publish below the letters in full:

The Rt. Hon. Dominic Raab

Secretary of State for Foreign and Commonwealth Affairs

Foreign and Commonwealth Office

King Charles Street London SW1A 2AH

2 September 2020

Dear Mr Raab,

Sri Lanka’s Defence Attaché to the United Kingdom Brigadier DBSN Bothota

We are writing to you relating to Sri Lanka’s Defence Attaché to the United Kingdom, Brigadier Dappula Bandara Swarna Bothota. Please find attached a detailed legal representation letter along with supporting material. Below is a summary of our case against the Defence Attache’ and our request to the Foreign and Commonwealth Office (FCO).

Sri Lanka’s military stands accused of committing grave atrocity crimes and genocide during the decades long civil war. According to UN figures released almost 6,500 ethnic Tamil civilians have been killed and 14,000 more injured in the fighting between the government and rebel forces since late January 2009. Respected human rights organisations estimate that at least 40,000 civilians were killed during the final stages of the war in 2009.

During the war, in February 2008, Brigadier Bothota was elevated to a Lieutenant Colonel and appointed as the commander of the senior most regiment of the Sri Lankan Army, namely 1st Reconnaissance Regiment Sri Lanka Armoured Corps. He served in this position until February 2009, playing a significant role in the Sri Lankan military during the final stages of the war.

In accrediting Brigadier BDSN Bothota, the FCO has not done the necessary due diligence to ensure that potential human rights violators are prevented from entering the UK and being allowed to hold office in the UK. Sadly, this would be the third time in succession, the FCO has accredited a war criminal as Sri Lanka’s Defence Attaché.

The first was Major General Prasanna Silva, named in three UN reports as a war criminal. Silva was asked to leave because of the threat of a judicial review. The second was Brigadier Priyanka Fernando, who threatened to decapitate peaceful protestors in front of the Sri Lankan High Commission in London. After he was asked to leave following the intervention of the APPG for Tamils among others and the threat of a judicial review, the FCO accredited Brigadier DBSN Bothota.

We call upon your office to to set out in clear detailed terms, supported by evidence of the actions taken by Her Majesty’s Government, exactly how it has met and continues to meet all of its obligations imposed by international and domestic law arising from the acceptance of Brigadier Bothota as a Defence Attaché. Additionally, we seek an immediate declaration from the FCO that in accordance with its international and domestic obligations the UK will declare Brigadier Bothota a ‘persona non grata’, curtail his diplomatic visa in order to allow the Met Police to arrest him and investigate him for the offences he has committed.

Yours Sincerely,

British Tamil Conservatives 

International Centre for Prevention & Prosecution of Genocide

PEARL

Tamil Coordinating Committee UK 

Tamils for Labour

Tamil Information Centre

Tamil Youth Organisation

Together Against Genocide

Transnational Government of Tamil Eelam

World Tamil Historical Society

Copies To:

Rt. Hon. Boris Johnson, Prime Minister

Lord Ahmad of Wimbledon, FCO Minister for South Asia

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The Right Honourable Dominic Raab MP

Secretary of State for Foreign & Commonwealth Affairs

King Charles Street
London SW1A 2AH

30 July 2020

Dear Mr Raab,

SRI LANKAN MILITARY ATTACHE BRIGADIER DAPPULA BANDARA SWARNA NARAYANA BOTHOTA

We are writing to request you to declare Sri Lankan Military Attache, Brigadier Dappula Bandara Swarna Narayana Bothota, a “persona non grata”. We are of the view that the UK has under international law and domestic law, clear obligations to:

a) curtail the diplomatic visa of Brigadier Swarna Bothota;

b) declare Brigadier Swarna Bothota a ‘persona non grata’;

c) seriously consider the initiation of criminal investigations.

Those obligations arise in the context of the Sri Lankan government persistently and systematically breaching the “intransgressible” principles of International Humanitarian Law, arguably perpetrating war crimes, crimes against humanity, genocide and committing gross violations of international human rights law during the war between the LTTE and the Sri Lankan government that ended in May 2009 and Brigadier Swarna Bothota playing a significant role in the Sri Lankan military during the relevant period of time.

The situation in Sri Lanka, particularly in the area of Vanni could not have been more serious. According to UN figures released almost 6,500 ethnic Tamil civilians have been killed and 14,000 more injured in the fighting between the government and rebel forces since late January 2009[1]. Respected human rights organisations estimate that at least 40,000 civilians were killed during the final stages of the war in 2009. On 21 April 2009, the International Committee of the Red Cross, the only aid agency with a permanent albeit restricted access to the warzone, described the situation as “nothing short of catastrophic” [2]with hundreds of civilians killed or wounded in the last few days[3]. UN Officials estimated that as many as 50,000 people remained trapped in the narrow stretch declared a no-fire zone by the Sri Lankan government despite tens of thousands fleeing the area[4]. The overwhelming majority of those killed were children[5].

During the war, in February 2008, Brigadier Bothota was elevated to a Lieutenant Colonel and appointed as the commander of the Senior Most Regiment of the Sri Lankan Army namely 1st Reconnaissance Regiment Sri Lanka Armoured Corps and served in this position until February 2009. Between August 2007 and January 2008, he was the Commanding Officer of the 6th Regiment of the Sri Lanka Armoured Corps.

In light of these facts relating to the final stages of the war, it is our view that the UK government’s refusal to declare Brigadier Swarna Bothota a ‘persona non grata’ and the UK Government’s decision to continue his diplomatic visa have in no way complied with its responsibilities under international and domestic law. In the face of such systematic and widespread violations of international humanitarian law and human rights standards by another state, the UK government has a number of obligations under international law. We are of the view that those obligations have not been met.

We call upon the Foreign Secretary to set out in clear detailed terms, supported by evidence of the actions taken by Her Majesty’s Government, exactly how it has met and continues to meet all of its obligations imposed by international and domestic law arising from the acceptance of Brigadier Bothota as a Military Attaché. Additionally, we seek an immediate declaration from the UK Government / FCO that in accordance with its international and domestic obligations the UK will declare Brigadier Bothota a ‘persona non grata’, curtail his diplomatic visa in order to allow the Met Police to arrest him and investigate him for the offences he has committed.

It has now become clear that the UK government has clearly not done the due diligence to ensure that potential human rights violators are prevented from entering the UK and being allowed to hold office in the UK. The attached research from the ITJP shows that the Brigadier should have been asked to clarify what his role, if any, was during the last stages of the war in Sri Lanka. However, this had not been done in Brigadier Bothota’s case. There is regrettably no longer any information available online about Brigadier Bothota’s role in the war between February – May 2009. The Vetting authorities should have asked him to clarify this period in his career before he was offered a diplomatic position in the UK. In order to remedy this failure, we invite the UK Government/FCO to refer this matter to the War Crimes/Special Branch of the Met Police for immediate investigation.

Sri Lanka’s Violations of International Law

Throughout 2008, the conflict intensified in the LTTE-controlled areas of northern Sri Lanka, known as the Vanni and in September 2008 the government expelled international humanitarian agencies from the region citing security concerns. In its 2008 Human Rights Report for Sri Lanka, the US State Department Human Rights Report observed:

The government’s respect for human rights declined as armed conflict escalated. The overwhelming majority of victims of human rights violations, such as killings and disappearances, were young male Tamils, while Tamils were only 16 percent of the overall population. Credible reports cited unlawful killings by paramilitaries and others believed to be working with the awareness of the government, assassinations by unknown perpetrators, politically motivated killings, the continuing use of child soldiers by a paramilitary force associated with the government, disappearances, arbitrary arrests and detention, poor prison conditions, denial of fair public trial, government corruption and lack of transparency, infringement of freedom of movement, and discrimination against minorities. Pro-government paramilitary groups were credibly alleged to have participated in armed attacks against civilians and practiced torture, kidnapping, hostage-taking, and extortion with impunity. During the year, no military, police or paramilitary members were convicted of any domestic human rights abuse. The executive failed to appoint the Constitutional Council, which is required under the Constitution, thus obstructing the appointment of independent representatives to important institutions such as the Human Rights Commission, Bribery Commission, Police Commission, and Judicial Service Commission.[6]

In January 2009, Sri Lankan forces seized control of major areas that had previously been held by the LTTE. Since that time there had been rising international concern over the humanitarian situation of the thousands of civilians trapped in the Vanni region together with condemnation of the Sri Lankan government’s role in the worsening humanitarian crisis.

Breaches of the “intransgressible” principles of international customary law

The brutality of the actions of the Sri Lankan government against the civilian Tamils is well documented by the UN expert panel report, UN Human Rights Commissioner OISL’s report, US State Department report and reports by respected international human rights groups.

Civilian Deaths and Indiscriminate Attacks

As cited above, according to a United Nations document circulated among diplomatic missions nearly 6,500 civilians were killed and 14,000 wounded in fighting in Sri Lanka between January and May 2009.7 During the war, the UN High Commissioner for Human Rights noted that “the current level of civilian casualties is truly shocking and there are legitimate fears that the loss of life may reach catastrophic levels in the fighting in this way”8. With rapid military successes the Sri Lankan army pursued an uncompromising military end game without any regard to the Tamil civilians caught in the crossfire. Calls for cease-fires to allow humanitarian access were repeatedly resisted and the 2 day ceasefire that was announced on 13 and 14 April 2009 was inadequate to allow in significant amounts of aid, or indeed to allow visits by humanitarian workers to the area. On 24 April 2009, hours after the UN announced the dispatch of a humanitarian team to the area and called for a pause in fighting to allow aid into the conflict zone, the Sri Lankan government stated that there would be no further breaks in its military offensive[9].

A high number of those civilian deaths had reportedly been caused by indiscriminate artillery attacks and aerial bombardment by the Sri Lankan forces including in the areas declared as “safe zones” by the government[10]. In a briefing published by Amnesty International in March 2009 it was noted “reports from the few remaining UN staff, aid workers and civilians able to contact the outside world speak of regular, heavy bombardment of the safe zone, including hours-long artillery barrages”[11]. The Office for the Coordination of Humanitarian Affairs (OCHA), reported in a press briefing at UN Headquarters that it continued to receive reports of shelling, mortar fire and aerial attacks in the “no fire” zone in Sri Lanka[12].

In a statement published on 3 April 2009, the United Nations Secretary General Ban Ki-Moon expressed deep concern at the continuing reports from the Vanni region that civilians were at extreme risk. At the same time the Secretary-General reminded the government of its responsibility to protect civilians, and, as promised, to avoid the use of heavy weaponry in areas where there were civilians.[13] Newspapers reports continued to report shelling in civilian areas on an almost daily basis[14] causing a high number of casualties. Medicins Sans Frontiere which was not allowed access to the war zone but treats those fleeing, reported in its press release on 22 April that:

“Busloads of patients are arriving from the conflict zone to the hospital and the government-run camps in Vavuniya. “The buses are still coming and they’re actually unloading dead bodies at times as some wounded people died on the way” says Karen Stewart, MSF mental health officer working in Vavuniya. More than 30 wounded people died on their way to the hospital on Monday 20th April.”[15]

There was round condemnation of the actions of the Sri Lankan government. On 22 April 2009, Secretary of State, Hillary Rodham Clinton said “I think that the Sri Lankan government knows that the entire world is very disappointed that in its efforts to end what it sees as 25 years of conflict, it is causing such untold suffering”[16].

Attacks on Hospitals

Human Rights Watch compiled information from aid agencies and eyewitnesses of more than two dozen incidents of artillery shelling or aerial bombardments on or near hospitals in the Vanni Region from 15 December 2008 to 10 February 2009[17]. Including three shellings on a hospital on 1 and 2 February 2009 where according to the ICRC more than 800 people including 500 in-patients were sheltering[18]. In an extraordinary interview with Sky News, the former Defence Secretary of the Sri Lankan government and the current President Gotabaya Rajapakse stated that the shelled hospital[19] was not within the unilaterally declared ‘no-fire zone’ set up by the government and therefore a legitimate target. Two days later on 4 February another hospital was bombed[20]. On 22 April 2009, the Guardian carried eyewitness accounts of cluster bombs and artillery shelling having killed large numbers of civilians in a makeshift hospital[21].

Illegal Use of Weaponry

The concerns regarding indiscriminate attacks on the civilian Tamil populations were heightened by evidence that the government had used illegal weaponry or legal weapons in an illegal manner[22]. Human Rights Watch stated that they had received information that the Sri Lankan forces were using multi-barrel rocket launchers which could not target with sufficient precision to be accurate against military targets, rightly pointing out that their broad area effect made their use incompatible with the laws of war in areas where civilian or civilian objects (such as schools or hospitals) were located[23].

Accusations of the use of cluster bombs by the Sri Lankan army were widespread[24] and Karen Parker in her evidence to the US Senate stated that “there appears to be reliable evidence of the use of white phosphorous as weapons rather than tracers, or that white phosphorous was used with disregard for possible civilian casualties. There is also photographic evidence of the use of fire bombs against Tamils in camps for internally displaced people.”[25]

Internally Displaced Persons (“IDPs”)

The treatment of IDPs by the Sri Lankan government raised serious concerns by international agencies and human rights organisations. Instead of providing the internally displaced with the assistance and protection they were entitled to under international law it appeared that the Sir Lankan government were violating their fundamental human rights. Human Rights Watch, report:
“The government has arbitrarily detained people during screening procedures; subjected all internally displaced persons, including entire families, to indefinite confinement in military controlled camps; and failed to provide adequate medical and other assistance to displaced persons. The government has directly restricted the efforts of relief agencies seeking to meet emergency needs, and has deterred agencies from offering greater support through policies that the agencies rightly perceive as unlawful…

In October – December 2008, Human Rights Watch documented the plight of hundreds of civilians detained in de facto internment camps established by the government since March 2008…the situation has further deteriorated since the beginning of 2009 with the arrival of thousands of new displaced persons in government-controlled areas. The government continues to immediately confine all of them in existing and newly established camps.”

In a letter to the International Monetary Fund, on 23 March 2009, Human Rights Watch further noted:

“All internally displaced persons who cross to the government side, including entire families, are sent to internment centres, which are military-controlled, barbed-wire camps where there are no rights to liberty and freedom of movement. Humanitarian agencies have tenuous access, but do so at the risk of supporting a long-term detention program for civilians fleeing a war.”
The Office for the Coordination of Humanitarian Affairs stated that up to the end of March 2009, 58,378 persons who have crossed form the conflict were being accommodated in camps for IDPs in the Vavuniya area while another 8,204 IDPs (including the injured and those who accompanies the patients) had gone to Tricomalee.

International bodies, including both the UN High Commissioner for Refugees and the UN Secretary-General’s representative on internally displaced persons consistently called upon the Sri Lankan government to honour its international legal obligations in relation to displaced persons.

Catherine Bragg, the U.N.’s deputy humanitarian chief, said in New York that appealed to the government for access to the refugees and for permission to be present at the initial screening of refugees received no response. With the Sri Lankan government estimating that over a 100,000 people had fled the conflict zone in the last weeks ensuring the cooperation of the Sri Lankan government on the treatment of IDPs was of the upmost priority.

Summary

The above only touches upon the human rights violations that the Tamil Civilians were enduring during the last stages of the war in Sri Lanka. The true scale of the humanitarian crisis and human rights atrocities occurring was extremely difficult to verify at that time because the Sri Lankan government restricted international humanitarian aid agencies from conducting relief operations in the Vanni region and refused any monitoring of the conflict by international actors and organisations. Furthermore, no independent journalists were allowed into the conflict zone and dissenting voices from the media were the subject of harassment, violence and even assassination.

However, despite the Government’s best efforts a clear picture emerged of gross violations of the intransgressible principles of international humanitarian law and internationally recognised human rights standards. Human rights law continued to apply in times of armed conflict save where derogations were applicable. The relevant instruments here included the International Covenant on Civil and Political Rights including the first and second Optional Protocols; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; the International Convention on the Elimination of All Forms of Racist Discrimination and the United Nations Convention Against Torture and the Genocide Convention.

The targeting of areas sheltering civilians, hospitals and unarmed individuals is utterly forbidden by Article 3 common to the Geneva Conventions of 1949 that binds both parties and the rules of customary international law. The wilful killing or infliction of harm on civilians through the use of indiscriminate weapons such as multi barrel rocket launchers in densely populated areas constituted grave breaches of international humanitarian law. The forcible displacement of civilians was also prohibited under international customary law and the Sri Lankan government’s treatment of the IDPs failed to adhere to the UN Guiding Principles on Internal Displacement and violated the prohibition on arbitrary detention under international humanitarian and human rights law. The deliberate and systematic denial of basic services and assistance such as health care and food is prohibited by international humanitarian law and where such action is calculated to bring about the destruction of part of the population constitutes a crime against humanity.

There is already clear prima facie evidence of ‘war crimes’ as defined by Article 8(2) and ‘crimes against humanity’ as defined by Article 7 of the Rome Statute of the International Criminal Court . While Sri Lanka is not a signatory to the Rome Statute it is well established that the norms of international humanitarian law prohibiting war crimes, crimes against humanity and genocide have the status of jus cogens norms . Jus cogens norms as defined in Article 53 of the Vienna Convention on the Law of Treaties are those rules “which are accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” They are elementary considerations of humanity to which the conventions merely give expression.

Given the slaughter of the Tamil civilians during the last stages of the war there is also a case for Brigadier Bothota and the Sri Lankan government to answer on the commission of genocide under the 1948 Genocide Convention. The definition of genocide contained in Article 2 of the Genocide Convention and Article 6 of the International Statute of the Criminal Court includes “any of the following acts committed with intent to destroy, in whole or in part, a national ethnical, racial or religious group, as such: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part….” And under Article 3, the acts which shall be punishable include genocide, conspiracy to commit genocide, attempt to commit genocide and complicity in genocide. Recent case-law particularly from the International Criminal Tribunal for the Former Yugoslavia is instructive on the evolution of the law as relating to Genocide.

Conclusion

There are reasonable grounds for suspecting that Brigadier Bothota has been involved in violations of international law.

We are of the view that there are a number of clear actions that the UK government should have taken and must now take to comply with its obligations under international and domestic law. What follows are examples of our concerns (and this should by no means be taken to be an exhaustive list). It is the UK government’s responsibility to satisfy us and, if necessary the court, that it has met its legal obligations, not our responsibility to set out what those exact obligations are.

Declaring Brigadier Swarna Bothota a ‘persona non grata’

Under Article 9 of the Vienna Convention on Diplomatic Relations, a receiving State may “at any time and without having to explain its decision” declare any member of a diplomatic staff persona non grata. A person so declared is considered unacceptable and is usually recalled to his or her home nation. If not recalled, the receiving State “may refuse to recognize the person concerned as a member of the mission.” We note with concern that hitherto, you have failed to take any concrete steps to declare Brigadier Bothota a ‘persona non grata’.

The initial decision to accept his credentials and the continued recognition afforded to him requires urgent explanation and justification. We would like to understand how the UK government concluded that the continued accreditation of Brigadier Bothota as a diplomat would not violate the UK’s international and domestic obligations and indeed an explanation as to how the UK Government concluded that it would not hurt the feelings of the peace loving British citizens and Tamil citizens in particular if they continued to accept Brigadier Bothota as a diplomat. Brigadier Bothota presence in the UK would appear to be completely inconsistent with the UK’s duties arising under Article 41 of the ILC Articles.

In the circumstances, we urge that it would be appropriate in this case to declare Brigadier Bothota a ‘persona non grata’ in the light of the credible evidence of his complicity in war crimes and crimes against humanity and genocide.

We ask you to provide a response by close of business on 14th August 2020.

1 http://www.guardian.co.uk/world/2009/apr/24/srilanka

2 http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/sri-lanka-press-briefing-210409

3 http://www.guardian.co.uk/world/2009/apr/22/civilians-sri-lanka-tamil-tigers

4 http://news.bbc.co.uk/1/hi/world/south_asia/8007465.stm

5 http://www.unicef.org/emerg/index_48791.html

6 http://www.state.gov/g/drl/rls/hrrpt/2008/sca/119140.htm7 http://www.guardian.co.uk/world/2009/apr/24/srilanka

8 http://www.unhchr.ch/huricane/huricane.nsf/view01/FFDE961C9D0236C5C1257578004B8E4B?opendocument

9 http://news.bbc.co.uk/1/hi/world/south_asia/8015818.stm

10 Human Rights Watch: War on Displaced, Sri Lankan Army and LTTE Abuses against Civilians in the Vanni. February 2009

11 Amnesty International, Stop the War on Civilians in Sri Lanka: a briefing on the humanitarian crisis and lack of human rights protection. March 2009

12 http://www.un.org/News/ossg/hilites.shtm

13 http://www.un.org/apps/sg/sgstats.asp?nid=3768

14 http://www.inthenews.co.uk/news/world/autocodes/countries/sri-lanka/60-killed-in-sri-lanka-as-civilian-safe-zone- shelled-$1286745.htm; http://www.thisislondon.co.uk/standard/article- 23678425details/Thousands+flee+war+zone+as+T amils+defy+surrender+deadline/article.do http://www.guardian.co.uk/world/2009/apr/22/sri-lanka-civilian-deaths

15 http://www.doctorswithoutborders.org/press/release.cfm?id=3550&cat=press-release&ref=home-center-relatedlink

16 http://www.independent.co.uk/news/world/asia/tamil-rebels-surrender-ndash-but-hunt-for-their-leader-goes-on- 1672717.html

17 Human Rights Watch: War on Displaced, Sri Lankan Army and LTTE Abuses against Civilians in the Vanni. February 2009, see page 18.

18 http://www.icrc.org/Web/eng/siteeng0.nsf/html/sri-lanka-interview-020209

19 http://news.sky.com/skynews/Home/World-News/Sri-Lanka-War-Hospital-In-Puthukkudiyiruppu-Shelled-Killing- Adults-And-Children/Article/200902115214899

20 http://www.guardian.co.uk/weather/2009/feb/04/srilanka-terrorism;

21 http://www.guardian.co.uk/world/2009/apr/22/sri-lanka-civilian-deaths

22 See the written testimony of Karen Parker before the subcommittee on Near East and South and Central Asian Affairs, Committee of Foreign Affairs at the United States Senate, 24 February 2009.

23 Human Rights Watch: War on Displaced, Sri Lankan Army and LTTE Abuses against Civilians in the Vanni. February 2009.

24 http://www.guardian.co.uk/world/2009/apr/22/sri-lanka-civilian-deaths; http://www.youtube.com/watch?v=zG- 9vCRi3-I

25 See the written testimony of Karen Parker before the subcommittee on Near East and South and Central Asian Affairs, Committee of Foreign Affairs at the United States Senate, 24 February 2009.