Colombo Telegraph

Rhetoric Aside, Sirisena Cannot Shield Army Generals Accused Of War Crimes For Long

By Veluppillai Thangavelu

Veluppillai Thangavelu

On 29 August, 2017 Al Jazeera broke the news that Brazuluan lawyers seek to expel Jagath Jayasuriya, Ambassador to Brazil, over abuses in the final phase of the war against LTTE in May, 2009. The lawsuits against Jagath Jayasuriya allege he oversaw military units that attacked hospitals and killed, abducted, disappeared and tortured thousands of civilians in the final phase of the civil war. The army is also accused of killing hundreds of LTTE cadres who surrendered to the army on the evening of May 18, 2009 or thereabouts.

Jagath Jayasuriya who has diplomatic immunity was the Ambassador for Brazil as well as five other countries Colombia, Peru, Chile, Argentina and Suriname. Human rights groups in South America have filed war crimes lawsuits against him who served as a general in Vanni from 2007 -2009. 

Although, as a diplomat Jagath Jayasuriya  enjoyed diplomatic immunity, the International Truth and Justice Project, which brought the case, wants him expelled and his conduct investigated.

“In the pivotal period between 2007-2009 he was really in charge of what was happening in the Vanni area,” lawyer Yasmin Sooka of the International Truth and Justice Project told the BBC’s News hour programme.

“The UN inquiry found that the army certainly didn’t maintain the distinction between civilians and combatants, and they also violated the law on the question of proportionality.”What was really awful was the perfidious conduct in putting people into no-fire zones and then shelling and bombarding them, which is why you have such a huge loss of life,” Ms Sooka said.

The UN estimates between 40,000 and 70,000 died in the final phase alone when Sri Lanka’s military defeated the Liberation Tigers of Tamil Eelam.

According to the suits, Jayasuriya oversaw an offensive from Joseph Camp in the northern town of Vavuniya. 

Lawyers for the Human Rights groups alleged Jagath Jayasuriya oversaw military units that attacked hospitals, schools and tortured and killed thousands of thousands of Tamil people. Allegations persist to this day that the army killed rebel leaders and others after they surrendered or were captured – and the UN admitted in 2012 that it could and should have done more to protect civilians.

Though Jagath Jayasuriya enjoyed diplomatic immunity, the Human Rights groups pursuing the suits hope they will compel regional governments to open investigations of Jayasuriya, remove his immunity and expel him.

Carlos Castresana Fernandez, the lawyer coordinating the effort, told the Associated Press news agency that suits have been filed on 28 August (Monday), 2017 in Brazil and Colombia. “This is one genocide that has been forgotten, but this will force democratic countries to do something,” Fernandez said. “This is just the beginning of the fight and while confessing that   international lawsuits across jurisdictions are complicated.

The criminal suits were spearheaded by the human rights group International Truth and Justice Project (ITJP), an evidence-gathering organisation based in South Africa.

Gen Pinochet spent 18 months under arrest in London fighting extradition to Spain. He was a Chilean general, politician and the military ruler of Chile between 1973 and 1990. He remained the Commander-in-Chief of the Chilean Army until 1998.

Some or other the Sri Lankan Foreign Ministry got wind of the moves by the Human Rights groups to file cases in the courts against Jagath Jayasuriya, The Foreign Ministry promptly advised him to return to Sri Lanka to pre-empt any embarrassing situation.  Jagath Jayasuriya returned to Sri Lanka on 27 August, 2017 after completing just two years. It was the Yahapalanaya government that appointed General Jayasuriya as Sri Lankan Ambassador to Brazil on 05th August 2015 thus continuing the practice of appointing former military bigwigs who had command responsibility during the last phase of Sri Lanka’s bloody civil war. However, officially the government claimed that Jagath Jayasuriya has completed his tour of duty and that is the reason for his return. The usual period of appointment under a contract is normally for four years later reduced to three years. Two years is an abnormal number. 

Before leaving for Sri Lanka, the Ministry of External Relations of Brazil hosted a farewell reception in honour of General Jagath Jayasuriya on 24th August at Itamaraty Palace in Brasilia. The reception was attended by diplomats from Asian and Latin American countries and representatives from Brazilian Government agencies. In reply, Ambassador Jayasuriya thanked officials at the Ministry of External Relations and all other Government authorities both in Central and State Governments for the excellent support given to him during his tenure of service in Brazil. He also said that during the last two years, the Embassy had organized many programmes in and out of the Capital- Brasilia.

The news about Jagath Jayasuriya’ s return to Sri Lanka would have faded away if not for the  bombshell dropped by no other than Field Marshall Sarath Fonseka, former Army Commander and later Defence Chief and now the Minister for Regional Development  in the cabinet. 

Sarath Fonseka told reporters summoned to his office at Rajagiriya on September 01, 2017 that he was aware of “crimes committed on suspects” by Jayasuriya when he was placed in charge of logistics and supplies during the final phase of the war. He went on to say that he received complaints that Jayasuriya was “committing crimes on suspects arrested and held in detention.”I know he committed crimes. I have details and I am ready to come forward and testify before a proper investigation,” Fonseka said.

The International Truth and Justice Project (ITJP) in its petition to the court against Jayasuriya  in Brazil and Colombia accused  Jayasuriya of overseeing torture and of command responsibility for extra judicial executions and hundreds of disappearances. The ITJP further alleged that Jayasuriya was based in Vavuniya and committed torture.

Minister Fonseka said he was ready to testify against Jayasuriya. “As I started an investigation, the then rulers removed me as army commander. I initiated an inquiry and arrested his (Jayasuriya’s) ADC. But, I was not allowed to complete that investigation,” Fonseka insisted that he did not allow any violations of international humanitarian law, but he was seeking an independent investigation to clear the name of the military and punish any who violated his orders. 

Sarath Fonseka and Jagath Jayasuriya are old rivals. It was Jayasuriya who succeeded Sarath Fonseka when the latter fell foul with Mahinda Rajapaksa and his siblings over the spoils of war.   Immediately after the war Sarath Fonseka emerged as war hero who defeated the LTTE lock, stock and barrel. Fonseka claimed that while he provided the leadership to the Military, the political leadership came from Mahinda Rajapaksa and Gotabaya, the defence Secretary. But the tone and tenure of army commander Fonseka changed when he started claiming sole credit to himself and no one else. This development was not to the liking of the Rajapaksas who sensed trouble over the growing popularity of Sarath Fonseka and therefore quietly kicked Fonseka upstairs by promoting him as the Chief of Defence Force. He was succeeded by Jagath Jayasuriya despite Sarath Fonseka recommending C.A. Chandrasri. for the post.

Very soon Sarath Fonseka resigned his post to contest Mahinda Rajapaksa, his one time Supreme Commander-in-Chief of the armed forces. His gamble failed. He was soundly beaten by Mahinda Rajapaksa by a wide margin of 1,842, 749 (17.73%) votes.  President Mahinda Rajapakse poled 6,015,934 votes (57.88%) compared to Sarath Fonseka who secured 4,173,185 or 40.15% of the votes. In the 2005 presidential elections Mahinda Rajapaksa won with a razor thin majority of only 180,786 votes (1.56%) Rajapaksa polled 4,887,152 (50.29) votes and Ranil Wickremesinghe polled 4,706,366 (48.73%) votes. Mahinda Rajapaksa won the elections thanks to the unofficial boycott of the elections by the LTTE. Only one person cast his vote out of a total of 89,454 registered voters in Kilinochchi electorate.

It is said troubles don’t come in singles, but in a row. As soon the victory at the presidential polls, Mahinda Rajapaksa went for the jugular of defeated Fonseka the loser.   Following his election defeat, Fonseka was arrested on 8 February 2010 and court-martialed for committing “military offences”. He was convicted for corrupt military supply deals and sentenced to three years in prison. After serving more than 2 years in prison, Fonseka was released amidst local and international pressure on 21 May 2012. On assuming power the Yahapalana government and President Maithripala Sirisena gave Fonseka the Complete Presidential Pardon and acquitted him of all the charges against him on 22 January 2015, restoring his pension and other Civic Rights.

Many came to the defence of Jagath Jayasuriya notable among them was President Sirisena. Addressing the 66th Slip’s convention held on September 03, 2017 (Sunday) President Sirisena who normally speaks softly, thundered “The charges against Jagath Jayasuriya is problem beyond our shores. I will not allow anyone in the world to touch Jagath Jayasuriya or any army commander or any war hero.”

 He told the convention that he would not allow retired general Jagath Jayasuriya or any war veteran to be tried by any foreign court. President Sirisena also aimed a pot-shot at non-governmental organisations saying he will not dance to their tune.  This has been more or less his stand since assuming power.

President Maithripala Sirisena while pledging he will not protect anyone guilty of murder during the civil war, signalling prosecution of security officers allegedly involved in a death squad that targeted civilians. “Those who killed journalists, sportsmen and others will not be protected,” Sirisena said. “Whether they are in the military or the police is immaterial.” However, Sirisena has rejected calls for an international trial into war-era crimes, emphatically stating he would never prosecute his own troops. He would not stand by murderers but would defend “war heroes” who helped crush the Tamil Tiger rebels in 2009. It is this stance that made him to delay the signing of the Bill on enforced disappearances for over a year and then making it operational by publishing in the gazette.

President Sirisena seems to be unaware of the laws and conventions governing conduct of war by the UNO. Sri Lanka is a signatory to many of these conventions barring the Rome Statute. 

The Geneva Conventions and their additional Protocols combine clear legal obligations and enshrine basic humanitarian principles.

• Soldiers who surrender or who are hors de combat are entitled to respect for their lives and their moral and physical integrity. It is forbidden to kill or injure them.

• The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the Red Cross, Red Crescent or red crystal is the sign of such protection and must be respected.

• Captured combatants are entitled to respect for their lives, dignity, personal rights and convictions. They must be protected against all acts of violence and reprisals. They must have the right to correspond with their families and to receive relief.

• Civilians under the authority of a party to the conflict or an occupying power of which they are not nationals are entitled to respect for their lives, dignity, personal rights and convictions.

• Everyone must be entitled to benefit from fundamental judicial guarantees. No one must be sentenced without previous judgment pronounced by a regularly constituted court. No one must be held responsible for an act he has not committed. No one must be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.

• Parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Adequate precautions shall be taken in this regard before launching an attack.

The Statute of the International Criminal Court defines war crimes as, inter alia, “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. The Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone and UNTAET Regulation No. 2000/15 for East Timor also provide jurisdiction over “serious” violations of international humanitarian law. The adjective “serious” in conjunction with “violations” is to be found in the military manuals and legislation of several States

The International Committee of the Red Cross is regarded as the “guardian” of the Geneva Conventions and the various other treaties that constitute international humanitarian law. It cannot, however, act as either policeman or judge. These functions belong to governments, the parties to international treaties, who are required to prevent and put an end to violation of IHL. They have also an obligation to punish those responsible of what are known as “grave breaches” of IHL or war crimes.

The UN estimates that between 40,000 and 70,000 civilians died during the civil war in Sri Lanka. Many thousands disappeared during the war and after surrender to the army on about 18 May, 2009.

(1) A group  consisting of more than 300 that included  senior  LTTE leaders like Pulithevan and Nadesan of LTTE political wing,  cadres  and  civilians were  told by the government that if they carried a white flag they would be safe crossing the frontline. But when they surrendered they were executed in cold blood – others have never been seen since.

(2) At Vadduvaakal at least 103 LTTE leaders who surrendered to the army along with civilians on 18 May, 2009. They were taken by the army in buses after informing their kith and kin that they will be released after a “short inquiry. An elderly Catholic priest Father Francis Joseph who volunteered to accompany the LTTE cadres was also taken away. They have not been seen since and are presumed to have been killed by by the army on orders from Colombo. At least one photo showed Balakumar and his son seated on a bench is an army camp. (https://www.colombotelegraph.com/index.php/ltte-cadres-who-surrendered-to-the-army-where-are-they/)

(3) Isai Priya who surrendered to the army was raped and murdered while she was kept at Vavuniya Joseph Camp under the command of Jagath Jayasuriya.  Gruesome pictures of Isai Priya appeared in the media her body covered with white cloth.

(4) Twelve year old Balachandran, son of LTTE leader Prabhakaran, too surrendered to the army along with his bodyguards. He was seen in photographs munching on some short eats, but later his body ridden with several bullet marks.

But the Yahapalanaya government continues to deny knowledge of these incidents. Prime Minister Ranil Wickremasinghe says he has been assured by the chiefs of armed forces that none are being held in secret camps.   If that is the case where are those LTTE cadres who surrendered to the army?  What happened to them? Have they been murdered?

The Sri Lankan government after co-sponsoring Resolution 2015/1 is now dragging its feet in implementing the resolution in full. The delay and the complacency have caused immense frustration among UNHRC officials and the Human Rights High Commissioner. In a hard hitting statement issued by Commissioner

On Monday 11 September, 2017 UNHR’s High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, expressed frustration over the “slow pace of reforms” in Sri Lanka and said the absence of action, on accountability meant exercising universal jurisdiction was “even more necessary”.

Speaking at the opening of the UN Human Rights Council session, in Geneva, the human rights chief called on Sri Lanka to live up to commitments it had made to the international community.

“I encourage the Government to act on its commitment in Resolution 30/1 to establish transitional justice mechanisms, and to establish a clear timeline and benchmarks for the implementation of these and other commitments, this should not be viewed by the Government as a box-ticking exercise to placate the Council, but as an essential undertaking to address the rights of all its people,” he said.

“The absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law makes the exercise of universal jurisdiction even more necessary.”

Recommendation No. 36 addressed to “The United Nations system and Member States” urges that “whenever possible, notably under Universal Jurisdiction, investigate and prosecute those allegedly responsible for violations, such as torture, war crimes or crimes against humanity”. Al Hussein comments were made in the wake of Sri Lanka’s Ambassador to Brazil and former military general Jagath Jayasuriya returning to Colombo after human rights groups filed lawsuits, accusing him of overseeing war crimes.

Al Hussein also called on the Sri Lankan government to “swiftly operationalize the Office of Missing Persons and to move faster on other essential confidence building measures, such as release of land occupied by the military, and resolving long-pending cases, registered under the Prevention of Terrorism Act”.

“I repeat my request for that Act to be replaced with a new law, in line with international human rights standards,” he added.

He also noted that the lack of credible action on these important issues had been felt by Tamils on the island. “In the North, protests by victims indicate their growing frustration over the slow pace of reforms,” he stated.

The High Commissioner concluded his address by stating: “In the first three years of my current term, the world has grown darker and dangerous. My vision for the work of my Office has become more determined, drawing even more deeply on the lessons which come to us from our forbears: human rights principles are the only way to avoid global war and profound misery and deprivation. In continuing to lead this Office I am inspired by movements of people standing up in many countries in defiance of the indefensible. They seek not power or personal profit; what they seek is justice”.

Both the President Mythripala Sirisena and Prime Minister Ranil Wickremesinghe must take seriously the riot act read by Human Rights Commissioner Zeid Ra’ad Al Hussein. The European Commission has thrown its weight behind Zeid Ra’ad Al Hussein.

Just last week (13 September, 2017) the European Union (EU) stated its concerns about the lack of concrete progress in key areas. “Torture has to stop. It is of paramount importance that the Government delivers on its commitments including the replacement of the Prevention of Terrorism Act with counter-terrorism legislation consistent with international standards and allowing people in custody to have access to a lawyer from the point of arrest. It also raised concerns about the fate of those who disappeared at the end of the war.”

If the Yahapalanaya government continues to ignore Resolution 30-1 and continue to refuse to appoint a hybrid court to investigate war crimes and crimes against humanity, it will invite the implementation of international jurisdiction by the UNO. In that event not only Jagath Jayasuriya but the whole lot of army generals who have committed war crimes may not be able to travel to foreign countries. 

Rhetoric aside, President Sirisena, who was  the acting  Defence Minister in the  final fortnight of the war,  cannot shield army generals  accused of war crimes for long. 

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