Feature Article

Rajapakse, a war-criminal in hiding

[TamilNet, Friday, 21 January 2011, 00:47 GMT]
Sri Lanka's President, Mahinda Rajapakse, purportedly on a private visit to the U.S. is likely to remain in hiding with his physical whereabouts kept secret from the public to avoid another embarrassing battle with diaspora Tamils. While, as a matter of jurisprudential fairness, US Ambassador Butenis's acknowledgment that Rajapaksas have committed possible war-crimes in Sri Lanka should trigger a Justice Department investigation, Rajapakse would not have attempted to enter U.S. absent assurance from the State Department that he will not be subjected to any legal procedures. Rajapakse will also be aware that, unlike in the UK, in the US private citizens cannot apply for an arrest warrant.

Professor Boyle of University of Illinois has called "liberal" Obama administration's conduct in allowing Rajapakase into the US as "Machiavellian Realpolitik at its worst."

In Britain any private individual can bring what is called a ‘private prosecution’ by applying to a magistrate. Normally the application would be for a summons to the defendant to attend court, but there is the alternative of issuing an arrest warrant if the offence is serious, or if the suspect might not answer to a summons.

In December, suspect Sri Lankan war criminal, Major General Chagi Gallage, who came as part of Mahinda Rajapaksa's entourage to London, escaped arrest by his premature departure from Britain. "An application [for arrest warrant] was lodged at Horseferry Road magistrates court, central London, but inquiries by Scotland Yard established that Rajapakse contingent had made a hurried exit," British media reported of the Rajapakse entourage's agonizing predicament in Britain.

Alien Tort Claims Act (ATCA) in the US permits foreign nationals to seek relief in Federal court for actions that violate the “law of nations” or a U.S. treaty. U.S. courts have interpreted violations of the “law of nations” under the ATCA to include crimes against humanity, war crimes, genocide, torture, rape, and summary execution. Private citizens in the US can file a civil claim against Rajapakses. Legal battle will detemine if head of state immunity will apply to senior Rajapakse. Ex-Army commanders and non-Head of State defendents will not be immune from ATCA charges.

Rajapakse's predicament in the US, and earlier in the UK, highlight what future holds for the politicians who held positions of "command responsibility" in Sri Lanka and the Military Commanders on the ground who obeyed the orders during the Vanni massacre in the first five months of 2009.

In Western liberal democracies the freedom of movement of suspect war-criminals will be severely restricted due to diaspora and local political pressure, and visits will likely be clandestine without the glare of publicity.

The situation is unlikely to change, and the alleged criminals have to always find ways to avoid getting caught in foreign legal nets, unless an internationally acceptable independent investigation that establishes accountability for the massive Tamil civilian deaths is carried out.

While a coherent international justice system to prosecute war-criminals and genocidaires is not in place, justice systems that have universal jurisdiction provide varied possibilities to prosecute war-criminals in different European democracies:

Universal Jurisdiction in Europe

Member State

Legal summary

Belgium

Belgium enacted the “Act Concerning Punishment for Grave Breaches of International Humanitarian Law” in June 1993. The legislation was amended in 1999 to include genocide and crimes against humanity in order to implement the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) and the Rome Statute of the International Criminal Court, respectively. The provisions of the Act granted Belgian courts a sweeping scope of authority to exercise their jurisdiction.

France

Under Articles 113-6 and 113-7 of the French Criminal Code, jurisdiction over genocide cases is limited to cases where active or passive personality principles are present. French courts are entitled under Article 689 of the French Code of Criminal Procedure to exercise universal jurisdiction over crimes defined as torture under the Convention Against Torture (CAT).

Switzerland

Military Penal Code specifically authorizes universal jurisdiction over grave breaches of the Geneva Conventions68 and includes a clause generally providing jurisdiction over violations of international humanitarian law and the laws and customs of war. Under Article 6bis (6a) of the Swiss Criminal Code, Swiss courts are obligated to exercise jurisdiction over crimes prohibited by international treaties.

United Kingdom

In 2001, the International Criminal Court Act (ICCA) extended jurisdiction over war crimes, genocide, and crimes against humanity when committed by a person residing in the United Kingdom either at the time of the criminal act or when proceedings are initiated

The Netherlands

The Netherlands was the first nation to exercise universal jurisdiction over crimes of torture pursuant to obligations under the CAT.

Scandinavia

Universal jurisdiction was first exercised in Denmark, Sweden, and Norway in response to complaints filed against asylum seekers from the former Yugoslavia. Denmark, Norway, Finland, and Iceland have enacted legislation incorporating the Rome Statute into domestic law. While draft legislation was created in Sweden in 2002, it has not yet been presented to Parliament

Germany

The German Code of Crimes against International Law (CCIL) came into force on June 30, 2002 and prohibits the core crimes of the Rome Statute under domestic law. Prior to the new legislation, the German Criminal Code authorized universal jurisdiction over the crime of genocide and those international crimes that Germany had treaty obligations to prosecute.

Spain

Universal jurisdiction practice in Spain derives from a combination of international treaty obligations, as well as national substantive and procedural rules. Article 23.4 of the Organic Law for the Judiciary 6/1985 (LOPJ) authorizes universal jurisdiction for enumerated crimes, including genocide, terrorism, and any offense under international treaty that Spain is obligated to prosecute.

Source: Kleck, Michigan Journal of International Law



Chronology:


External Links:
AI: Amnesty International Calls on the United States to Investigate Sri Lankan President
WT: Sri Lankan president under scrutiny for war crimes
TS: Alien Tort Claims Act of USA
UKLaw: Prosecution of Offences Act 1985
WashU: Alien Tort Claims Act to combat international HR violations (2Mb)

 

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