Any which way one looks at a Fonseka pardon, he is between the devil and the deep blue sea. Speculation is rife whether the former army commander Sarath Fonseka will be given a presidential pardon before the March 2012 United Nations Human Rights Council sessions. Even if he is pardoned, it looks like he will be faced with a war crimes trial abroad. Fonseka is a Legal Permanent Resident in the United States and has family and property in Oklahoma.
A leaked US Embassy cable, dated 15 January 2010, updated the Secretary of State on war crimes accountability, following the end of the country’s long and bloody conflict. Ambassador Butenis noted there had been some limited progress in investigating potential war crimes, but added: “There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power. In Sri Lanka this is further complicated by the fact that responsibility for many of the alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka”.
Americans even cancelled Fonseka’s Hawii visit due to their concerns about his involvement in human rights violations. In another “confidential” cable dated November 2, 2009 the US Ambassador wrote; “On November 2, Foreign Minister Bogollagama called in Ambassador regarding reports that the U.S. Department of Homeland Security had requested that Sri Lankan Chief of Defense (CHOD) Sarath Fonseka come in for a ‘voluntary’ interview with the U.S. Immigration and Customs Enforcement office in Oklahoma City on November 4.”
“Bogollagama said the interview was a matter of ‘urgency and relevance’ to the government of Sri Lanka and asked for information to ‘help us understand and formulate a proper reaction’. Ambassador recounted recent developments regarding Fonseka, including cancellation of his invitation to attend the recent Chief of Defense conference in Hawaii due to U.S. concerns about his involvement in human-rights violations during the conflict with the LTTE.”
In the same cable Butenis said; “Bogollagama said what concerned the GoSL were reports that a DHS lawyer had allegedly told Fonseka that the purpose of the interview was to gather information about the possible involvement of war crimes of SL Defense Secretary and the president’s brother and U.S. citizen Gotabhaya Rajapaksa. Bogollagama said any questioning of Fonseka about SL ‘official’ information would be frowned upon by the GoSL and ‘could seriously impact our relationship’.”
If you look at the Aide Memoire which the Sri Lankan government sent to the US State Department regarding Fonseka’s interview issue you can see what the GoSL was trying to hide. It says; Chief of Defence Staff is a high level position within the Sri Lanka Government. General Fonseka is on an official visit on behalf of the Government of Sri Lanka. He travelled to the United States on a diplomatic passport for a prearranged appointment and other US Government Agencies. Moreover, whatever General Fonseka may have become aware of during his service with the Government of Sri Lanka and in the course of his duties, has the status of privileged information. He has no authority to divulge or share this information with third parties, without the prior approval and consent of the Sri Lanka authorities.”
Talking to this columnist, US based Donald Gnanakone from “Tamils for Justice” said; “we are interested and determined to expose the truth, and make everyone involved including US Citizens and Residents, fully accountable for their crimes, and provide evidence of other officials’ crimes. Justice needs to be served and it can only be done if the truth is told. Since Fonseka is a US resident we will get DOJ and DHS to investigate US Citizens and Residents”.
“All are presumed innocent and the US judicial system would definitely give them a fair trial after initial impartial investigations, with full deposition via the attorneys of the victims. Now the 3 year anniversary is fast approaching and the US itself is guilty of dragging its feet, and all underestimate the resolve of the Tamil diaspora,” Gnanakone further said.
‘We will not rest until the perpetrators of war crimes and crimes against humanity are brought to justice. Fonseka stands accused of all of the crimes mentioned above,” another Tamil daispoara activist Thiru Thiruchchthi from the France-based House of Tamil Eelam said.
The London based well-known anti-LTTE activist, the head of ENDLF Europe and Chairman of Tamil Broadcasting Cooperation Ramaraj Veerahia said; “If there is no truth, justice and accountability then the two communities will never reconcile. So we will try Fonseka for war crimes in Europe.”
Sarath Fonseka is accused for various crimes against humanity. Not only his acts with regard to the war, he was even accused of abducting, attacking and killing Journalists. It was not only Lasantha Wickramatunge; (speaking in parliament the opposition leader Ranil Wickremesinghe at that time said the killers reported back to Sarath Fonseka. For me, however it would not be just a Fonseka act. Lasantha was a high profile journalist and killing Lasantha needed political approval), what about the killings of North East Tamil journalists? Almost all journalists who were assassinated were from Army controlled areas.
A superficial position long advanced by a large section of people in Sri Lanka and elsewhere is that military effectiveness and human rights are incompatible. Now the whole bloody war crimes issue is limiting the issue to crimes committed by both sides during the final stage of the war. What about the horrendous crimes committed by all sides during the war? In his book “The Arrogance of Power” (2000) Dr Rajan Hoole who is a well known critic of the LTTE describes Fonseka’s account as follows, “We refer to a second point of view – that which guided our reporting over the years, namely how the Tamil people saw the Army and the security services during that period – the early 90s. Here the distinctions made in Colombo between moderates and hawks, and between gentlemen and cads had little or no meaning. Kobbekaduwe was in charge at Amparai when a battalion under him commanded by Colonel Sarath Fonseka committed terrible atrocities in Kalmunai, Akkaraipattu and the surrounding areas during June 1990.”
University Teachers of Human Rights Report No. 7 of May 1991 gave what certain army officers who mixed with civilians disclosed. They confided how they had been affected in the aftermath of massive and arbitrary reprisals against Tamil civilians in the Eastern Province, beginning in June 1990: “… Several of these officers would generally be against antagonising the civilians unnecessarily and would not risk the lives of their men on doubtful ventures. The knowledge that the battalion which first went into Kalmunai and indulged in widespread massacres, later suffered grievous casualties to the point of wrecking the commander’s career, has also made an impression on them!”
According to Rajan Hoole’s book in 2000; Among the officers who felt disturbed were Colonel H. Halangoda who in the latter half of 1990 was in Kaluwanchikudy south of Batticaloa and Colonel Percy Fernando who was in Batticaloa. These officers were friends and contemporaries, and had made friends among the civilian population. They generally liked to think that they were considerate and fair by the civilians, and believed that a political solution was the only way out. Many of them were like General Kobbekaduwe spoken of as the ‘doves’ or the ‘moderate wing’ of the Army. We had also commended the disciplined conduct of troops under Halangoda. The Colonel referred to in the quotation above who led a battalion into Kalmunai from Amparai town is Sarath Fonseka. His name has been associated with the massacre of several hundred Tamil civilians in the area comprising Kalmunai and Akkaraipattu during June-July 1990. …it is very difficult to pick out doves and hawks in the Army based on such events. Colonel Fonseka caused a river of blood to flow in Kalmunai. But his superior was General Kobbekaduwe who was placed in charge at Amparai – a so-called ‘dove’.” To this day no proper tribunal has gone into who was responsible.
In another chapter Hoole says “Here we have eloquent testimony to the consequences of an arrogant and cavalier approach to Human Rights. Thus, given the plight of the Army at that time, Janaka Perera found himself thrust from virtual retirement into becoming Sri Lanka’s final hope. Sarath Fonseka from being regarded a write-off in 1990, joined Janaka Perera in Jaffna. At this juncture they prevented the fall of Jaffna which earlier seemed foregone. It also confirmed that any residual prospect of the Kumaratunge government punishing officers responsible for gross violations had vanished. Two such officers had evidently become indispensable. The process by which this came about entails a heavy price to be borne by the country that is already manifest.”
It is worth to quote Amal Jayasinghe, long time bureau chief for Agence France-Presse in Colombo and a friend of journalist Namal Perera. Namal was nearly abducted near an army camp in Colombo and during the attack suffered a severe beating. Jayasinghe says they saw a more relaxed Namal, just after Fonseka was jailed on corruption charges and sentenced to 30 months in jail (See Lucinda Fleeson American Journalism Review). Namal is a Sinhala man. What about the Tamils then?
A law student at Tulane University School of Law in the US and activist from Tamils Against Genocide Rajeev Sreetharan said to this columnist; “The possibility of retributive justice for egregious state-sponsored violations of human rights and international humanitarian law has been a chimera in Sri Lanka’s legal universe since independence. As Fonseka is present in Sri Lanka, action against Fonseka would ultimately bottleneck on the enforceability of international extradition treaties between the forum jurisdiction and Sri Lanka, arguably making Commonwealth member-states a workable option to initiate litigation on the supposition jurisdiction over crimes committed in Sri Lanka maybe established through the extra-territorial application of law or the theory of universal jurisdiction within the respective domestic legal system. We are looking for opportunities to bring such cases, with access to victims and enough evidence to prove a particular war crime under Fonseka.”
Equivocation on criminality in the name of peace has made peace ever more remote. Impunity and history are catching us up with a zeal corresponding to our determination to ignore them. To deny command responsibility is to fall behind the world in denying justice all together in such matters and to wallow in Sri Lanka’s present morass.