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General Fonseka’s allegation and its impact on the armed forces:
A legal perspective

The Cabinet of Ministers, at their meeting on Wednesday December 23, decided to take serious note of allegations by General Sarath Fonseka to the media. The Cabinet resolved to use all means at its disposal to prevent irreparable harm from being inflicted on the country as a result of these allegations. This was the gist of the statement, issued by the Prime Minister on behalf of the Cabinet.

The Cabinet’s purpose, in making this decision, was to achieve three objectives

i) to ensure that the honour and integrity of the nation are not tarnished by reckless and unfounded allegations;

ii) to protect members of the 58th Division in particular, and members of Sri Lanka ’s Armed Forces in general, from the substantial risk of arrest and prosecution while travelling abroad;

iii) to prevent Sri Lanka’s Armed Forces, and members of the Police Force, from being deprived of the opportunity to serve in United Nations Peace Keeping Forces in different parts of the world.

The point of departure is to acknowledge, in stark and explicit terms, the gravity of the peril to which members of the country’s Armed Forced are exposed as a direct consequence of the allegations attributed to General Fonseka

This is not a matter of implication or inference. The risk arises from the clearest possible exposition of the principles of public international law, applicable to this situation, by courts of unimpeachable authority. 

Let us take, hypothetically, the case of a member of the 58th Division traveling in the United Kingdom on official business, for medical treatment, in connection with the education of a child, on holiday or for any other purpose.

General Augusto Pinochet, in similar circumstances, was arrested in a London hospital a few minutes before midnight on October 16, 1998. The warrant of arrest was issued by a metropolitan magistrate in London pursuant to an order by the Fifth Central Magistrate of the National Court of Madrid in Spain .

The evidence against Pinochet was largely circumstantial. By contrast, members of our own Armed Forces are directly implicated by the statement of General Fonseka who was Commander of the Sri Lankan Army at the relevant time.

The nature and degree of the risk to which they are exposed are all too evident on the basis of emphatic statements of the governing law in the Pinochet case.

The final hearing was by the highest court in the United Kingdom – The House of Lords – in the presence of seven Law Lords.

Their exposition of the principles of public international law, which will clearly govern the liability of members of the 58th Division, will enable the public in our own country to assess for themselves the gravity of the situation.

In the Pinochet Ugarte case Lord Phillips of Worth Matravers, in the House of Lords observed: "There are some categories of crime of such gravity that they shock the consciousness of mankind and cannot be tolerated by the international community."

There can be no conceivable doubt that the cold blooded killing of persons attempting to surrender with white flags falls well within this category of crime.

Lord Phillips continued, and his comments are immediately relevant: "Any individual who commits such a crime offends against international law. The nature of these crimes is such that they are likely to involve the concerted conduct of many, and liable to involve the complicity of the officials of the State in which they occur, if not of the State itself. In these circumstances it is desirable that jurisdiction should exist to prosecute individuals for such conduct outside the territory in which such conduct occurs".

The firm entrenchment of this doctrine in public international law today is underscored in the judgement of Lord Goff of Chieveley: "It can no longer be doubted that, as a matter of general customary international law, a state official will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes."

Not only is the principle of personal penal liability one of the core values of the international legal system at the present day, but there is categorical recognition of the duty of all states to uphold and enforce this principle without compromise in any form. Lord Hutton, delivering judgement in the Pinochet case said: " There is a clear recognition by the international community that certain crimes are so grave and so inhuman that they constitute crimes against international law and that the international community is under a duty to bring to justice a person who commits such crimes."

The wide sweep of this imperative duty, and the tenacity with which countries are enjoined by international law to give effect to it, form the cornerstone of the judgement by Lord Nicholls of Birkenhead: ``The United Nations has put some of the necessary nuts and bolts into place for bringing persons suspected of having committed such offences to trial in the courts of individual states. States were to assist each other in bringing such persons to trial, asylum was not to be granted to such persons, and States were not to take any legislative or other measures which might be prejudicial to the international obligations assumed by them in regard to the arrest, extradition and punishment of such persons."

There can hardly be a more comprehensive statement of the elements of the all-embracing duty of nations to deal with crimes belonging to this category (of which the allegation by General Fonseka represents an undeniable instance) with exemplary severity.

The array of technical bars to the exercise of jurisdiction, which can ordinarily be called in aid, are rigidly excluded in these cases because of their inherently repugnant character. This is asserted with great emphasis in the judgement of Lord Millett: "The principle of international law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law."

These pronouncements, at the highest level of the judicial hierarchy of the United Kingdom, are binding on all British courts and are accepted as being of persuasive authority throughout the Commonwealth. Their cumulative effect offers a clear indication of the measure of jeopardy in which members of Sri Lanka’s Armed Forces stand today, because of the direct testimony contained in General Fonseka’s statement.

What is abundantly clear from the judgement in the House of Lords, applying the body of international law in force today, are the following propositions:

i) The law of nations looks upon crimes encompassed within the category described by General Fonseka, with the greatest odium and revulsion,

ii) Personal liability, which cannot be disowned or repudiated, attaches to perpetrators of such crimes, no defence relating to superior orders being available.

iii) In an increasingly wide range of circumstances referred to in international legal instruments and the prevailing customary law, the courts of many jurisdictions, rejecting technicalities, are showing themselves disposed to assert authority in respect of persons accused of this type of crime.

iv) The intuitive inclination of the courts of many countries is to lean towards assumption of, rather than abstention from, jurisdiction in these cases and towards the imposition of condign punishment.

In substance, these are the reasons why the government, on receipt of the letter of 18th December sent by Mr. Philip Alston, the United Nations Rapporteur on Extra-judical, Summary and Arbitrary Executions, has thought it necessary to take serious note of its contents and to use all means at its disposal, by convincing rebuttal, to abort at the very threshold procedures fraught with the risk of serious consequences for Sri Lanka’s Armed Forces.

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