Sri Lanka’s Rajapaksa Headed for War Crimes Tribunal?

Former Sri Lankan President Mahinda Rajapaksa, apparently fearing punishment for his alleged role in war crimes against ethnic Tamils during the 26-year-old civil war that ended in 2009, said he opposes the international war crimes apparatus created by the United Nations and urged all parties in the island nation to oppose the passage of new laws aimed at prosecuting members of its armed forces.

The United Nations report was released in Geneva on Oct. 1. It called for suspects accused of war crimes to be prosecuted, particularly during the final months of the conflict. The alleged war crimes include attacks on civilians and civilian buildings; executions of combatants and prisoners; enforced disappearances by the Sri Lankan military and paramilitary groups backed by them and acute shortages of food, medicine, and clean water for civilians trapped in the war zone. (See related story: UN Seeks More Accountability for Sri Lankan Civil War)

Rajapaksa disowns any alleged crimes, let alone war crimes although he has also been suspected of a subsequent reign of terror against his critics after the war ended. A number of journalists have disappeared and some have been murdered by unknown suspects.

Former President says no UN jurisdiction

In a speech delivered at a Buddhist temple in the capital Colombo, the former president, who was upset by Maithripala Sirisena, in the presidential election in January, said he opposes a resolution passed against Sri Lanka at the UN Human Rights Council (UNHRC) in Geneva, and warned that such a resolution would put the country at risk.

A panel of experts appointed by UN Secretary-General Ban Ki-moon to advise him on the issue of accountability with regard to alleged violations of international human rights and humanitarian law during the final stages of the civil war found "credible allegations" that war crimes and crimes against humanity were committed by the Sri Lankan military.

The panel has called on the secretary general to conduct an independent international inquiry into the alleged violations of international law. In March 2014 the United Nations Human Rights Council authorized an international investigation into the alleged war crimes.

Sri Lanka a Geneva Conventions Signatory

War crimes are prohibited by the Geneva Conventions, of which Sri Lanka is a signatory. In 2002 the International Criminal Court was created by the Rome Statute to prosecute individuals for serious crimes, such as war crimes. Sri Lanka is not a signatory of the Rome Statute. Therefore it is only possible for the ICC to investigate and prosecute war crimes in Sri Lanka if the UN Security Council were to refer Sri Lanka to the ICC.

Rajapaksa said his government did not cooperate with the probe mainly because it was instituted outside the established procedure of the UN Human Rights Council. Apparently, he sought to use the new Sirisena government to block the UN investigation on war crimes but failed. Although Sirisena spoke to the UN General Assembly on Sept. 30, he said his government supports a “fresh universal approach” that deals honestly with the past while pursuing sustainable development.

Rajapaksa said the government cosponsored the Geneva resolution without considering its implications and without informing parliament and apprising the people about it.

“If a separate criminal justice apparatus is to be set up with foreign judges, prosecutors and investigators, our ordinary law as well as the constitution itself will have to be amended," he said in a statement. “The report was not carried out by an independent Commission of Inquiry, but for the very first time, by the Office of the High Commissioner on Human Rights."

Neither the human rights council nor human rights commission, he argued, has the authority to set up an international war crimes tribunal to deal with the issue. The only body with the authority to do so is the UN Security Council, he said, where the veto power of China and Russia would be a factor to contend with.

Chinese Stick by Rajapaksa

The Chinese government, which was a close ally of Rajapaksa and a major investor in Sri Lanka, apparently retains a residual interest in his welfare. China’s vice minister of foreign affairs, Liu Zhenmin, met with Rajapaksa in early October in what was described as a “courtesy call” although the Chinese in the past have been careful to stay away from discredited figures. Rajapaksa tweeted a picture of the two, which was interpreted as evidence of Beijing’s willingness to keep its options open in the wake of Sirisena’s clear intention to back away from favoring any particular nations seeking influence in the Indian Ocean.

The former strongman, who critics said was seeking to set up a dynastic rule, said he believed that if any members of the armed forces were involved in any wrong-doing, they should be tried under the local laws and in local courts.

"The present attempt being made in this country is to introduce these faulty laws and procedures to Sri Lanka and to jail our war heroes expeditiously. No self-respecting citizen should allow this to happen," he said.

However, the Sirisena government last week maintained that the process to fix accountability as mandated by the latest UNHRC resolution will be purely domestic and dismissed claims by the opposition that it would be a hybrid mechanism.

"I wish to stress that this would be a Sri Lankan process, not a hybrid process. It will be the Sri Lankan institutions and systems who will be implementing the process," Foreign Minister Mangala Samaraweera said.

It was said after the war was concluded that Rajapaksa should be tried the day he was beaten in an election and was no more head of state. The question remains whether he might be forced to appear at by the International Criminal Court in the Hague to be charged with war crimes.

President Sirisena has pledged a credible domestic mechanism under an independent local judicial system, but the UN has said Sri Lanka's criminal justice system is not yet ready for the task. Prime Minister Ranil Wickremesinghe said the government would set up commissions for truth seeking, justice, reconciliation and preventing conflict, saying all the mechanisms will be domestically-drafted.

Sirisena has made a credible start at the task of rebuilding the country, six years after the war ended. He now has to deliver justice for the Tamils, but leaving Rajapaksa unpunished would defeat that mission.