Inching towards that international ‘war-crimes’ investigation

By Kalana Senaratne

(December 28, Colombo, Sri Lanka Guardian) General Sarath Fonseka claims during an interview (The Sunday Leader, interview of 13 December 2009) that he had learnt that Defence Secretary Gotabaya Rajapaksa had given orders not to accommodate (kill) any LTTE leaders ‘attempting to surrender’.

Later (on 20 December), General Fonseka states that as Commander of the Army during the final stages of the war, he ‘did not receive any communication that some LTTE leaders were planning or wanting to surrender’ and that he was ‘not told at any stage they wanted to do so and that some kind of an agreement had been reached that they must come out carrying pieces of white cloth’. He further states that: ‘nobody carrying white flags attempted surrender in those final days of the war. Therefore all of the LTTE leaders were killed as forces completely took over a remaining 100m x 100m area of land north of Vellamullivaikkal’.

But in another interview (Daily Mirror online), Fonseka asserts and emphasizes the fact that Gotabaya Rajapaksa did try to contact junior offices in the Army, that he gave ‘stupid’ instructions concerning the white flag (i.e. the above claim that he ordered to kill those attempting to surrender holding white flags), and that these ‘stupid’ instructions were however not carried out by the Army. In sum, Fonseka’s accusation then boils down to this: that Defence Secretary Gotabaya Rajapaksa ordered the Army to kill the LTTE leaders who would attempt to surrender with white flags.

As Minister Prof. GL Peiris claimed correctly at a press conference, the statements, coming from no lesser person than Sarath Fonseka, will be taken with utmost seriousness by the UN as Fonseka seem to be giving direct evidence to the charges and accusations leveled by numerous persons and organizations concerning alleged war crimes; and as he further notes, the statement of Fonseka will be used against Sri Lanka ‘with a vengeance’. This is in stark contrast to the utter ludicrous and ignorant observation made by the country’s Foreign Minister, Rohitha Bogollagama (The Island, 23 December), who questions why the UN needs to take the Fonseka statement seriously!

The consequences, which are of a very grave and serious nature, that emanate from Fonseka’s statement are quite clear. It enables one to clearly, without doubt, question whether a senior and responsible high ranking public official had intentions of committing war crimes or crimes against humanity, by attempting to kill combatants who were willing to surrender themselves to the Army. The statement also throws a lot of doubt as to whether this was in fact ‘government policy’, and casts shadows on the explanations given by the Government concerning other accusations (eg. the Channel 4 clip). And given the fact that the statement was made by none other than Sarath Fonseka, by calling for the observations of the Government, what the UN Special Rapporteur Philip Alston has done is understandable, inevitable.

Within this context, it is becoming abundantly clear that an investigation into these accusations is now required; and that if one is not carried out by Sri Lanka, an international-probe would be pushed through.

A UN-Security Council backed inquiry – i.e. the setting up, for example, of an ‘International Criminal Tribunal for Sri Lanka’ under Chapter VII of the UN Charter – could be considered by some to be a remote possibility (especially due to the support Sri Lanka will, or may, receive from the veto powers China and Russia). But today, the government cannot be too sure about the veto-powers coming to our rescue (as will be discussed below).

There is then the International Criminal Court (ICC). Even though Sri Lanka is not a Party to the Rome Statute, one should not forget that the Chief Prosecutor could decide to launch an investigation (under Article 13, para (c) of the Rome Statute) - an investigation proprio motu. This is subject to the process that needs to be followed as per Article 15 of the Statute. If the Prosecutor is convinced that there is a reasonable basis to proceed, he needs to submit a request to the Pre-Trial Chamber for an authorization of an investigation. And in addition to this, the Pre-Trial Chamber in turn needs to conclude whether or not Sri Lanka falls within the jurisdiction of the Court, as required under Article 15(4), and see whether the preconditions to the exercise of jurisdiction set out in Article 12 apply to Sri Lanka. And as I have argued before (in ‘An ICC Investigation: Why it is Doomed to Fail’, The Island of 15 May 2009), the provisions of the Rome Statute would still be somewhat favourable to Sri Lanka.

However, this does not mean that all doors that lead to an international investigation are firmly shut.

On the one hand, one needs to be mindful, for instance, that the Chief Prosecutor could make a strong case by analyzing the seriousness of the information he receives by those who allege the commission of serious international crimes (Article 15(2)). As provided for under the Statute, he can seek information from numerous sources such as the UN, intergovernmental organizations, NGOs; and can even receive oral/written testimony. And the statements made by Sarath Fonseka can only add to the evidence that is piling up in the Chief Prosecutors office, right now (sent in by the likes of Bruce Fein, et al). With this, the political pressure that can be exerted, if the Chief Prosecutor is convinced that there is a reasonable basis to proceed with an investigation, is tremendous. If the Prosecutor comes up with a serious case, the Security Council would need to take note of it; which could result, not in the setting up of a Special Tribunal, but in approving and directing the ICC to initiate an inquiry – which is possible under Article 13(b) of the Statute.

There is also the principle of ‘complementarity’ that the Government of Sri Lanka needs to be concerned about. The principle of complementarity suggests (as per Article 17 for instance, in relation to States Parties) that the primary jurisdiction to investigate war crimes is with the State Party concerned, and that the ICC could only investigate if the State Party concerned has failed, or is unwilling, to investigate allegations of international crimes. Now while one could argue that this principle applies only to States Parties to the Statute, it is always possible, for the Chief Prosecutor or any other organization or individual to point to the fact that Sri Lanka has failed, or is unwilling, to carry out investigations in the face of mounting allegations leveled even by persons such as a former Army Commander.

And this point will be driven home by reminding us of our own commitments which we pledged to undertake, the political promises we made, not so long ago. We would be reminded of the Joint Communiqué that was issued at the conclusion of the UN Secretary General’s visit, highlighting the need for an accountability process, as well as the commitments we gave in this regard whilst endorsing this Joint Communiqué during the Special Session of the UN Human Rights Council in Geneva, in May this year.

In addition to these, of course, there is, as has been pointed out on previous occasions, the possibility of Sri Lankan military and senior government officials being arrested under the principle of ‘universal jurisdiction’. The latest international case (or incident) of that happening being that of former Israeli Foreign Minister Tzipi Livni, wherein the Westminster Magistrate’s court issued an arrest warrant for alleged war crimes committed by Israel during the war in Gaza in December 2008. The point, for the moment, is not whether it is legitimate to arrest Sri Lankans for defeating the LTTE. Rather, the crucial issue that given current developments concerning the accusations that have surfaced, it is always possible that such an arrest be issued vis-à-vis Sri Lankan officials as well.

And on the diplomatic front, we are faced with a number of hurdles; the most immediate and serious one being the Human Rights Council in Geneva, to which Philip Alston would be handing over a report on the matter. There is doubt whether the Member States of the UN HRC view the country’s situation in the same light as was done a few months back. Since Sri Lanka’s victory at the Special Session, many things have happened. They would note that the promise of the full implementation of the 13th Amendment has not been kept. They would note also that a serious inquiry, or an accountability process, has not yet been initiated in Sri Lanka, to look into the numerous accusations leveled against the country. And of course, even the sacking of one of the most able diplomats (Dr. Dayan Jayatilleka) soon after the remarkable and successful effort he put in Geneva to defeat a resolution sponsored mainly by a few Western States, seemed to have baffled many countries; further hampering our efforts to garner the confidence and support of all those States which stood by us during the Special Session in May. A state of affairs which does not look all that hopeful, given also the news that the EU has decided to withdraw GSP Plus concessions due to the poor human rights record in the country.

This is then in addition to the knowledge many others would have about numerous commissions of inquiry set up in Sri Lanka which have failed miserably in the past to effectively investigate human rights violations (the most recent one being the Special Presidential Commission of Inquiry, led by retired Justice Nissanka Udalagama). Within such a context, it would be impossible for the Members of the HRC, as well as the UN Human Rights Commissioner, to ignore scrutiny of the Sri Lankan situation with greater precision, force and even ‘vengeance’.

Hence, given the seriousness of the accusations and evidence that have surfaced within the country, and the accusations leveled by other States (such as the US, in its recent report to the Congress), the need for a domestic inquiry into allegations of serious crimes committed during the final stages of the war has become, perhaps unfortunately, imperative. We told the world, we proclaimed, that we were clean in defeating the most brutal terrorist organization in the world. The world seems to be questioning us.