B. Aloka Wanigasuriya joins JiC for this post on the chances of Sri Lanka achieving justice and accountability for atrocities committed during the country’s civil war. This piece coincides with the ten-year anniversary of the end of the war. Aloka is an Australian lawyer and a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark).

Instead of being prosecuted for alleged war crimes, Shavendra Silva was recently appointed to Sri Lanka’s second-highest army ranking (Photo: Reuters)

In May 2019, Sri Lanka marked ten years since the end of its civil war that raged for nearly three decades between government troops and the guerrilla force, Liberation Tigers of Tamil Eelam (LTTE). An estimated40,000 civilians perished during the final offensive, which lasted from January to May 2009, and allegations emerged of the commission of serious international crimes by both parties to the war.

Calls to establish a UN-mandated international justice mechanism to investigate the alleged international crimes appear to have fallen on deaf ears. As Sri Lanka has not ratified the Rome Statute it is not subjected to the jurisdiction of the International Criminal Court (ICC). Therefore, the ICC cannot currently prosecute alleged crimes committed in Sri Lanka. The only avenue for ICC prosecution is through a UN Security Council referral of the situation to the Court – and the chances of that happening are slim to none. No domestic prosecutorial avenues exist for seeking criminal justice for these alleged international crimes. Since the end of the war, several attempts have been made by victims and human rights groups to bring the alleged perpetrators of these crimes to justice either through utilizing the national laws of other states not party to the conflict (for example through filing civil suits) or through the application of universal jurisdiction. However, due to a host of political reasons, the current possibilities of accountability look bleak.

Extraterritorial prosecution

 In September 2017, citing “the absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law”, the UN High Commissioner for Human Rights advocated for the use of universal jurisdiction. However, as repeated previous failed attempts indicate, the exercise of universal jurisdiction to bring perpetrators of the alleged international crimes to justice isn’t an easy task. In 2012, a US court rejected a lawsuit against the then Sri Lankan president, Mr. Mahinda Rajapaksa reasoning that as a foreign head of state, he enjoyed immunity from prosecution. Similarly, in late 2010 an attempt at seeking an arrest warrant against Mr. Rajapaksa and senior members of his entourage during a visit to the UK came to naught. In 2011, a similar attempt seeking his arrest during his visit to Australia for the Commonwealth Heads of Government Meeting was rejected by the then Australian Attorney-General due to head of state immunity.

In the past, incumbent and former heads of state such as Charles Taylor (former president of Liberia) and Slobodan Milosevic (former president of Serbia and the Federal Republic of Yugoslavia) have been prosecuted by international criminal courts and tribunals. However, such cases have been rare. Recently, states have been reluctant to arrest current or former heads of state from other countries. For example, despite an ICC arrest warrant being in place for his apprehension, the former Sudanese president, Omar Al Bashir managed to travel unhindered to numerous countries. However, in a recent turn of events, the Appeals Chamber of the ICC in its judgment in the Jordan Referral re Al-Bashir Appeal, held that neither State practice nor opinio jurissupports the existence of head of state immunity under customary international law vis-à-vis an international court. This was also held to be relevant “for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State”. However, given indications of a possible request for an advisory opinion from the ICJ, this is unlikely to be the final word on the immunities issue.

Previously, in instances such as in (i) the prosecution of former Chilean leader, General Pinochet, and (ii) the ICJ Arrest Warrant Case (Democratic Republic of the Congo v. Belgium, 2000) concerning the Belgian arrest warrant issued against the incumbent foreign minister of the DRC, attempts were made to apply universal jurisdiction to prosecute individuals using a second state’s domestic legal system. Of these, the latter could be relevant to the Sri Lankan situation given its links to the alleged commission of war crimes and crimes against humanity, and the personal immunities extended to certain categories of state officials. Here, the ICJ found no exception under customary international law that strips away the immunity from criminal jurisdiction granted to incumbent government ministers who are suspected of committing war crimes or crimes against humanity. This suggests however that this personal immunity terminates at the cessation of the state official’s official duties, hence exposing them to the possibility of prosecution. Still, due to states not wishing to be exposed to a diplomatic minefield, the chances of a second state arresting and prosecuting individuals such as the former president of Sri Lanka on international atrocity crime charges through exercising universal jurisdiction remains slim.

Regardless, several attempts have been made at utilizing universal jurisdiction to prosecute Sri Lankan officials. Since the end of the civil war, Sri Lanka appears to have adopted the practice of rewarding its decorated ‘war heroes’ who played key roles in the civil war against the LTTE by appointing them to key diplomatic positions. In August 2017, the International Truth and Justice Project filed lawsuits in Brazil and Colombia against former Sri Lankan military general Jagath Jayasuriya, invoking universal jurisdiction. He is said to have been in charge of government troops in the northeast of the country that allegedly targeted hospitals and caused the deaths of masses of civilians. After the war, he was appointed as Sri Lanka’s ambassador to Brazil, Colombia, Peru, Chile, Argentina and Surinam. According to Article 31.1 of the Vienna Convention on Diplomatic Relations (1961), diplomats enjoy immunity from the criminal, civil and administrative jurisdiction of a receiving state. While the receiving state can request that Sri Lanka waive the diplomatic immunity of its agent, it is highly unlikely that Sri Lanka would agree. At the time of writing however, Jayasuriya’s diplomatic tenure had ended and he has left Brazil for Sri Lanka.

In September 2017 the Sri Lankan president, stated that he “will not allow anyone in the world to touch Jagath Jayasuriya or any other military chief or any war hero in this country”. Still, should either Brazil or Colombia issue an arrest warrant against him on the basis of universal jurisdiction, this could have serious implications for the former general. Should he travel outside of Sri Lanka, as his diplomatic immunity no longer applies, it would make him susceptible to arrest in a third state and risk being extradited to the warrant-issuing state in order to stand trial.

A further attempt to utilize American civil jurisdiction in order to bring former Sri Lankan army general, Shavendra Silva to justice for his alleged involvement in the extrajudicial killings and torture of LTTE members, was also thwarted in early 2012. The lawsuit was brought under the Alien Torts Claims Act (which allows civil actions to be filed by a non-national against someone for conduct that took place outside the USA), and the Torture Victims Protection Act. However, the District Court for the Southern District of New York dismissed the lawsuit on the basis of diplomatic immunity. Despite these allegations, in a widely criticized move, the current Sri Lankan president appointed him the commander of the Sri Lankan Army in August 2019.

A bleak future for justice

Following the end of the civil war, Sri Lanka enjoyed a relatively peaceful decade. That calm however, was shattered by the Easter Sunday bombings that claimed 250 lives and resulted in a spate of ethnoreligious violence. Major failings within the country’s security and government apparatus linked to the attacks have emboldened calls for strong leadership akin to that advocated by the former controversial wartime defence secretary, Gotabaya Rajapaksa.

With presidential elections scheduled for 16 November 2019, some predict a return of the old guard if Rajapaksa, the presidential candidate from the Sri Lanka People’s Front/Sri Lanka Podujana Peramuna (SLPP) , were to be elected as the country’s next president. Should he be elected, the writing already appears to be on the walls in terms of how allegations of wartime atrocities would be treated. Recently, he is said to have declared: “A large number of war heroes are in jails on trumped up charges…I’d like to say by the morning of the 17^th all of them would be acquitted and freed.” This year, multiple lawsuitswere filed against Rajapaksa in the US, some of which are linked to his former role as the country’s wartime defence secretary. While these cases are still ongoing, should Rajapaksa be elected president, he would most likely claim head of state immunity from such foreign prosecutorial action. Given past comments by senior politicians, should the candidate from the New Democratic Front, Sajith Premadasa be elected president, it is similarly unlikely that a criminal justice mechanism to try the alleged international crimes will be established.

Against this backdrop, achieving justice for alleged international crimes committed in Sri Lanka increasingly appears to resemble a pipe dream rather than a distinct possibility.