Colombo Telegraph

The Way Forward After War Crimes Charges 

By Jehan Perera

Jehan Perera

The war crimes cases registered against former army commander General Jagath Jayasuriya in five South American countries would alert the government that it needs to take remedial action without further delay. It seems that General Jayasuriya was fortunate that the cases were only registered after he left Brazil where he was Sri Lanka’s ambassador for the last two years. Although the former army commander had diplomatic immunity, international law also states that those accused of war crimes are subject to universal jurisdiction. This means that any country that subscribes to the Rome Statute that set up the International Criminal Court can detain a suspect in a war crime case.

General Jayasuriya has refuted media reports that he fled Brazil. The close proximity of dates on which he left Brazil and the war crimes cases were registered suggests a connection between the two. The former army commander has also strongly denied that one of the army camps he was in overall charge of was also a place where torture of LTTE prisoners took place. In his defense, he has said that was not in charge of offensive military operations but only of defensive ones. This is unlikely to convince those who accuse him as those in charge of defense would be obliged to elicit information from prisoners about the future plans of the LTTE.

Recently US President Donald Trump has been making statements that seem to justify the use of torture in extreme cases such as when terrorists or those suspected of such activities and who attack the United States are apprehended. This has caused great consternation worldwide as this open defiance of international norms will be a setback to the development of international human rights and humanitarian law related to war. It has been said that the worst peace is better than the best war. This is because in war, where life is at stake, the desire for self-preservation will invariably come first, and rules that protect prisoners with information from being tortured are likely to be broken.

Foreign Courts 

The allegations of war crimes against General Jayasuriya have become more complicated because his superior officer during the war, Field Marshal Sarath Fonseka has publicly stated that General Jayasuriya was under a cloud during the time of war. The Field Marshal has bitter memories about the shabby way he was treated by the former government when he was the army commander and was succeeded by General Jayasuriya. He said that there were allegations of offenses against those held in captivity against General Jayasuriya which he had wished to investigate before he was relieved of his post. Field Marshal Fonseka has also said that he is prepared to come forward and give evidence to this effect if a properly constituted war crimes court is set up.

The possibility now exists that the cases registered against General Jayasuriya, and the international publicity it has generated, will encourage human rights activists and Diaspora groups to also take action in foreign courts against members of the Sri Lankan state who were engaged in the military operations against the LTTE. This could include not only military personnel, but also political leaders and public service officials who had significant roles to play in the war. The international law on war crimes has the concept of “command responsibility” that can used to target anyone in the chain of command, even if they were far from the actual theatre of action. As ranking officers, they can be held liable to be punished under international law for war crimes committed by troops on the ground.

However, there is a way forward for Sri Lanka. The Geneva resolution that was co-sponsored by the government in October 2015 states that the government will setup four special mechanisms to deal with the aftermath of the war. These are a truth commission, office of missing persons, office of reparations and special court for accountability purposes. Although the government’s initial promise was to set these up in full or at least in part by March 2017, it failed to do so. As a result the government requested a further two year extension which it obtained. None of the four mechanisms has been established in full or in part. Only the Office of Missing Persons has been legislated, but has still not been established.

Implement Nationally 

Those who are working within the government’s reconciliation process have unofficially confirmed that the legislation for all four reconciliation mechanisms to which the government committed itself have been prepared. The lack of progress in establishing them may be attributed to apprehension within the government that these mechanisms will start to generate information that can be used as evidence in future cases of war crimes. The level of apprehension is increased by the fact that the international community will also be keenly observing how these four mechanisms will operate. Therefore the level of independence of the reconciliation mechanisms from partisan political control is also likely to be high.

If it is the desire to keep the truth about the past submerged that has led to the continuing delay in implementing the four mechanisms to which the government committed itself in Geneva, then the cases registered in South America show that Sri Lankans who have been involved in the war effort can become vulnerable to international legal processes. International law comes into operation when the national (or domestic) law is not properly implemented. This suggests that instead of continuing to delay setting up the four mechanisms promised to the world in Geneva, the government should start operationalising them.

It is in the national interest to establish mechanisms, including a special court, that is under Sri Lankan jurisdiction rather than leave Sri Lankans to be vulnerable to sudden arrest by foreign courts in distant countries. Those who once blamed the government for agreeing to co-sponsor the UNHRC resolutions in Geneva may now see that radical decision from another perspective. It is the Geneva process that shows the way forward to Sri Lanka. If the Sri Lankan government is able to show that it has a credible domestic legal process underway in the special court and accountability mechanism it sets up, the requirement of international legal processes will diminish. This is the message that government leaders need to communicate to the Sri Lankan people and begin to implement instead of procrastinating any further.

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