Columns - FOCUS On Rights

On being prosecuted in foreign courts

By Kishali Pinto Jayawardene

From a standpoint of both law and policy, the increasing number of cases and briefs urging legal action filed in foreign courts against the country's political leaders, military commanders turned diplomats and military administrators by former members of the Liberation Tigers of Tamil Eelam (LTTE) in Switzerland, the United States and now Australia, raise some valid questions for discussion.

Justified questioning of the legitimacy of these suits
From one perspective, the Government of Sri Lanka may well be justified in questioning the legitimacy of these applications as well as those supporting the efforts. These litigants or those individuals on whose behalf the applications have been filed and who are cited as main witnesses in the briefs are certainly not ordinary Tamil civilians who had lost their loved ones or suffered in other ways.

On the contrary, these individuals had been part of the LTTE, unequivocally and on their own admittance. They continue to be intensely supportive of the cause that ultimately brought the greatest misery to the Tamil population. Even at a time when Southern governments were literally bending over backwards to appease their late leader, his insatiable hubris led him to reject all these efforts and assassinate an incumbent President along with scores of intellectuals, Tamil and Sinhala politicians and ordinary people as well as ruthlessly drive out Muslim inhabitants of Northern villages in pursuit of his totalitarian dreams. These litigants and witnesses are therefore very much part of the brutality inflicted by the LTTE, even though unsurprisingly no responsibility is accepted by them as such.

Second, their quite blatant effort is not to hold both parties to the conflict accountable according to the laws of war. Rather, it is directed solely against Sri Lanka's military cum political administrators and leaders. The lack of even handedness is therefore quite evident and leaves the motivation behind these legal suits open to immediate question.

Speaking to bad strategy
These very obvious considerations speak to bad strategy, more than anything else. They strengthen the internal hand of a Government which is highly adept at pointing to the double standards permeating the lodging of these suits. In the main, these applications have been filed in judicial systems whose relevant military leaders and politicians are culpable elsewhere following collective military adventurism in Iraq and Afghanistan resulting in the decimation of entire populations. However, these leaders have escaped unscathed up to now despite rumblings of legal action. The simple truth may be that one wrong does not make another wrong, right. However in propaganda terms of any administration eager to whitewash itself, it makes very logical sense to crow about how only the weak are sought to be punished while the strong is not affected.

In any event, passions tend to run strong in the still evolving legal arena of universal responsibility for war crimes. The fact that the Obama administration declined to prosecute former US President George W. Bush and his military administrators is a case in point. In February 2011, CNN contributor and unabashedly Bush loyalist David Frum categorized a legal suit fled against the former US president in Switzerland as an 'assault upon the basic norms of American constitutional democracy'. Describing his outrage at the unsuitability of a Swiss court inquiring into the conduct of a former US President, Frum observed that this would amount to espousing a 'new kind of global legal regime in which law is severed from political representation. Call it human rights without democracy.'

Highly inflammatory impact
This debate has its equally passionate supporters and opponents. And the matter becomes even more complicated when it involves an internal conflict as opposed to military actions of States outside their jurisdictions. Further, where Sri Lanka is concerned, this is a Presidency still benefiting from the defeat of a terrorist foe which many thought with good reason, could not be defeated. In this background, legal suits filed by LTTE members in foreign jurisdictions primarily based on the command responsibility of Sri Lanka's political and military commanders and completely ignoring the culpability of the LTTE in bringing about this situation, have the same highly inflammatory impact as putting a match to gasoline.

Even on the specifics of international law relating to command responsibility, it needs to be shown that those committing the atrocities/war crimes were under the command of the defendant, the commanders knew or should have known, based on the surrounding circumstances at the time, that their subordinates were engaging in impermissible conduct and they must be shown to have done all they could to prevent or punish those responsible for the commission of such crimes. Decisions handed down by the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda have definitively established the parameters of this concept, relying mainly on the culpability principle and the traditional doctrine of criminal intent. Needless to say, the elements of responsibility are rigorous.

But leaving aside legal complexities, the danger is that these suits may lead to precisely nowhere given the dynamics of international realpolitik while internally, public support will accrue even more to an administration seen as being 'victimised.' This, in turn, will set the path of Sri Lanka's return to democracy back by several more years if not decades.

Serious embarrassment caused as a result of decline of Rule of Law
That said, there is also little doubt that the serious embarrassment currently being caused to the country in the international sphere has been occasioned by the determination of this government to proceed with haste on its journey of obliterating Sri Lanka's democratic institutions since the war ended in 2009. Last year, there was a typical incident in the Northern courts whereby notice was issued against senior military figures as is the normal procedure in a habeas corpus application. This particular case was in respect of an enforced disappearance in mid 2009. The very next day, officers in plain clothes had questioned from the registrar as to why notice had been issued. Ordinarily, such questioning would have made those officers liable for contempt of court. However, if a contempt order had been handed down, the registrar or the judicial officer himself, or perhaps both would have been in danger of being 'disappeared'. The fate of this application and similar others were consequently cast into limbo. Parents of those disappeared still vainly trek from one army camp to another to ascertain what had happened to their children despite facile assurances by government spokesmen that this information is easily obtainable. To add insult to injury, land rights are now the new battleground, from Kayts to Kalpitiya.

Sri Lanka has had an independent judiciary and once boasted of an expansive rights-based jurisprudence that was commonly cited as admirable precedents in the Commonwealth. Without putting the country into an unenviable spotlight in courting prosecutions in foreign courts and resorting to expensive spin doctoring to repair the damage, restoring the integrity of our own institutions should be the first imperative. This is quite easy if there is political will. Demanding this through public pressure is most urgently needed not only for the North but assuredly, for the entire country.

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