War Crimes & Command Responsibility

by Thambu Kanagasabai,, LLM [Lond.]
Former Lecturer in Law – University of Colombo Sri Lanka
President, The Tamil Canadian Elders for Human Rights Organization,
Toronto, Canada, September 26, 2017

The current hot topic which has generated fire and heat among the military’s high ups and dragging the Sri Lankan government also to answerability is the war of words with allegations and counter allegations hurled against each other by the former Army commanders Sarath Fonseka and Jagath Jayasuriya who left Brazil on July 28, 2017 where he served as Ambassador from August 2015.

The reasons for the incriminating statements made by Sarath Fonseka stemmed after Jagath Jayasuriya  was appointed by the former President Mahinda Rajapaksha on the advice of Gotabaya Rajapaksha [brother of then President and Defence Secretary at that time], after by-passing 14 other senior military commanders, despite objections by Sarath Fonseka. Another reason was the failure by the Government to inquire into allegations of various crimes committed in various Camps when he was serving as the Vanni Commander.

General Sarath Fonseka claims to possess evidences involving the various crimes committed and the identities of those who committed them. He further stated his readiness and willingness to give evidence if and when proper investigations are initiated in respect of the crimes committed during the war by the few military personnel. As expected, Jagath Jayasuriya has denied all the allegations of Sarath Fonseka and further went on to say that Sarath Fonseka in his capacity as the Army Commander should bear responsibility for any crime committed during the war.

The emerging accusations have confirmed the commission of war crimes by Sri Lanka Security forces which need to be further investigated by independent bodies.

Under International Law, the principle of command responsibility for war crimes lies from the top to bottom covering the President, Minister of Defence, Defence Secretary and Commanders of various Battalions and Brigades. It is to be noted that under the constitution, the commander-in-charge of the Sri Lanka armed forces is the President of the Republic of Sri Lanka who only appoints the Army, Navy and Air Force Commanders, and Mahinda Rajapaksha was the Commander-in-Chief from November 2005 until December 2015.  He also held the Office of Minister of Defence who also appointed the Secretaries to Government Ministers. Former President Mahinda Rajapaksha appointed his brother Gotabaya Rajapaksha as the Secretary of Defence from November 24, 2005 which post he served until December 2015. The Secretary of Defence exercised supervision of Government Departments in the charge of Minister of Defence and was subject to the direction and control of the Minister of Defence, former President Mahinda.
The Army Commander reported directly to the Secretary of Defence, Gotabaya who was responsible to the President, [source ICEP 2014]

It is to be noted that the commission of war crimes, crimes against humanity etc. have already been highlighted in the various reports of United Nations, UNHRC and Independent Human Rights Groups.

Madam Jasmin Sooka of International Truth and Justice Project [ITJP] filed a lawsuit in Brazil on July 28, 2017 and charged Jagath Jayasuriya for committing the following war crimes by his subordinates while serving as the Vanni Commander during the war:
Sexual Assaults
Extrajudicial killings
Torture, Enforced Disappearances, all against the detainees in Vavuniya
Camps
Indiscriminate shelling of hospitals
Preventing Humanitarian Assistantance reaching civilians.

In denying these allegations, Jagath Jayasuriya made the following statements in an interview in Colombo [Ceylon Today, 09/03/17] |:
“I was never the fighting Commander  I was the Vanni Commander.  Orders to fight came from the Army Commander.  I looked after the internally displaced persons providing logistic supplies [about 300,000]  internally displaced people.”
“War crimes if at all had happened someone must specify it. I never know of any atrocities. About Joseph Camp, Air Force was using it. There were other camps in the same premises. If something happened there, I am not responsible.”
“How can I be responsible if someone else doing it? The entire camp was not under my command. I did not know what was going on in that part of the camp.”

Jagath Jayasuriya also stated the following in his interview among other matters:-
“I deny anyone carried white flags, we used to report or inform Gotabaya Rajapaksha, Defence Secretary also if something was happening.” “Sarath Fonseka used to call from China and verified reports when he was in China from May 11, 2009 to May 15, 2009.” [ICEP 2014- Page 202…full reference below in Sources]
“About war crimes allegations, President Rajapaksha’s Government was in the process of doing something about it, and also in their case they also did not take a concrete action.  That Government was sort of in denial not allowing anything to happen. This Government has a different approach, but nothing is happening.  All of them are answerable.  The Government must seriously attend to these issues”.
“I do not know of war crimes because I was near the Vavuniya Airport and Nandikadal was 100 kms away. How will I know what was going on there?”

It is to be noted that Defence Ministry’s communiqué in 2013 regarding Jayasuriya is confirmation of his role in Vanni:
“He has been the Commander of Security Forces in Vanni since August 2007, before he took over the mantle of the Army: To his credit, General Jagath Jayasuriya has been actively engaged in the overall military planning and operations in Vanni.”

In 2010, Jagath Jayasuriya is reported to have stated:
“As the Security Forces Commander Vanni, the entire Northern operations was conducted in the tactical area of responsibility that came under my command. I was actively involved in the ground operations executing the directives from Army Headquarters and the Ministry of Defence from the very inception of the humanitarian operations, starting from Mannar in 2007 right up to the very end, May 2009. Overall I was responsible.” [SP’s land forces 2010 – ICEP 2014]

General Sarath Fonseka on 1^st September 2017 at a press conference in Colombo has come out with statements hurling various accusations of war crimes committed when Jagath Jayasuriya was the Vanni Commander. His statements appear to bare the falsehood of most of Jagath Jayasuriya’s press statements mentioned above.

Excerpts of General Sarath Fonseka’s statements are as follows:-
1. “Jagath Jayasuriya was not assigned to any front line military operations. He was involved in the logistical supply of goods to the war front and rehabilitation tasks.”
2. “Liberation Tigers of Tamil Eelam cadres and civilians were sent to the Vavuniya Camp which was under the command of Jegath Jayasuriya.”
3. “Information reached me as to the approval granted to kill Liberation Tigers of Tamil Eelam cadres and civilians by Jegath Jayasuriya in collusion with Gotapaya Rajapaksha [then Defence Secretary] besides allegations of torture of detainees in Jossoph Camp.”
“Jagath Jayasuriya did not compile the list of detainees in the Vavuniya camp, in order to facilitate the killings ordered by the top defence officials. This is totally illegal”.
“Jagath Jayasuriya  says he did not want to know what happened to the Tamils detained in the Joseph camp, at the same time he did not tell as to their ultimate fate in the camp”.
“I have sufficient information as to the persons who committed the crimes. I am prepared to furnish the details if a proper investigation is instigated on these matters”.
“I tried to initiate investigation against Jagath Jayasuriya after the war and arrested the assistant of Jegath Jayasuriya to commence the investigation. However I was not allowed to complete the investigation. Besides, I was removed from the position of Army commander”.
“It is possible to try those who committed crimes under the Military Laws”.
“President should be held responsible if Jagath had involved in such a cowardice act which affected the people when I was giving orders to an Army of 200,000. The Army Commander is responsible for lawful acts only”. [Courtesy Daily Mirror, 09/01/17]

The principle of command responsibility applies to all those involved in the war on the strength of evidence and facts presented.

Meaning of Command Responsibility:
The term broadly refers to the duty to supervise subordinates and liability for the failure to do both in Government and Military Law. This doctrine was established by the Hague Conventions of 1899 and 1907.
“Command responsibility is an omission mode of individual criminal liability. The superior is responsible for crimes committed by his subordinates and for failing to prevent or punish – as opposed to crimes he ordered”.

Commands include the following:
[a] Policy Command: – By Heads of State, High Government Officials.

[b] Operational and Tactical Command: Direct command over troops on the ground and military leadership. War crimes and crimes against humanity constitute the major offences which bring in the concept of command responsibility.

The modern doctrine of command responsibility can be defined as “the responsibility of Commanders for war crimes committed by subordinate member of their armed forces or persons subject to their control”

“Rule 153 of International Law deals with doctrine of commander or superior responsibility.  Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if subordinates were about to commit or will be committing war crimes.”

War crimes include torture, extra-judicial killings, massacres, enforced disappearances, attacks on civilian buildings and civilians, execution of combatants and prisoners of war and rape.

Under Act 28[A] of Rome Statute of International Criminal Court
Military Commanders are imposed with individual responsibility for crimes committed by forces under their effective command and control if they
“either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”.

Regarding Sri Lanka, the war between the Sri Lankan Security Forces and the Liberation Tigers of Tamil Eelam [LTTE] from 2006 to 2009 ended with victory for the Government forces who are accused of committing war crimes and crimes against humanity as reported by the UN Panel of Experts, who found “credible allegations” for the commission of those crimes. The report also accused the Liberation Tigers of Tamil Eelam [LTTE] of committing war crimes like conscription of child solders.

The crucial Commanders involved in the war between 2006 and 2009 were:

From December 6, 2005 to 13^th July 2009 Lt. General Sarath Fonseka  served as the Army Commander being “responsible for operational decision making” from Army Headquarters in Colombo, and Major General Jagath Jayasuriya who served as Commander for Vavuniya District from August 6, 2007 to July 14, 2009. This district covered Puttalam, Mannar, Anuradhapura including Kilinochchi and Mullaitivu. Military operations in North-East were co-ordinated by Major General Jagath Jeyasuriya. Also involved were 57, 58 & 59 Divisional Commanders – Jagath Dias, Savendra de Silva and Prasenna Silva. Perpetrators of crimes and those coming under the chain of command responsibility can be tried by the International Criminal Court as stated by UN Rapporteur Ben Emmerson [on July 14, 2017] and also under the Universal Jurisdiction Clause as remarked by UN High Commissioner for Human Rights HE Al-Hussein in his report on September 11, 2017 at the UNHRC Council Session.

“Universal Jurisdiction allows States or International Organizations to claim criminal Jurisdiction over an accused person regardless of where the alleged crime was committed and regardless of the accuser’s nationality, country of residence or any other relation with the Prosecuting entity”.

“States have a logical and moral duty to prosecute an individual responsible and therefore no place should be a safe haven for those who have committed genocide, crimes against humanity, extra-judicial executions, war crimes, torture and enforced disappearances”.
Besides, all State parties to the Convention Against Torture are obliged whenever a person suspected of torture is found in their territory to prosecute or extradite that person”.

This principle is based on International Norms owed to the entire world community and States being bound by the International obligations to prosecute the accused who committed crimes which are too serious for toleration within a jurisdiction.

Since Sri Lanka has not signed the 2002 Rome Statute which created the International Criminal Court, only the Security Council can authorise the set-up of this Court to try Sri Lanka for the international crimes of genocide including war crimes and crimes against humanity.

In addition, under Article 99 of the UN Charter, the Security Council also has the authority to appoint an International Commission of Inquiry.

Setting up of an International Criminal Court case is possible if and when Russia and China support, which appears uncertain. As such, the only viable option is the exercise of Universal Jurisdiction by the 124 countries who have signed the Rome Statute and accepted the moral responsibility to indict war criminals. So far the South American States Mexico & Colombia have done their part by allowing law suits against Jagath Jayasuriya. However Jegath Jayasuriya and Major Generals Savendera Silva, Jagath Dias, Presanna de Siva avoided the lawsuits and left Brazil, USA, Switzerland & England respectively. It is to be noted that the command responsibility as well as individual responsibility rests on all the divisional commanders who operated the war in Vanni.

Former President Mahinda Rajapaksha bears the responsibility for war crimes in his capacity as the Commander-in-Chief of the armed forces and as the Minister of Defence. Defence Secretary Gotabaya Rajapaksha bears responsibility as the Official who supervised the war operations. The Army Commander directly made reports to Gotabaya and “there was some information that in relation to the surrender of senior Liberation Tigers of Tamil Eelam leaders, Gotabaya by passed regular command lines to convey orders directly to a Senior Field Commander Savendra de Silva. [ICEP 2014]  In corroboration,  Army Commander Sarath Fonseka  told the Sunday Leader on December 13 2009 that “Gota ordered them to be shot” [order given to Savendra de Silva to shoot the surrendees].  In an interview in 2012  Jagath Jayasuriya also stated that “I still remember President personally giving me a call instructing me to pursue the operations as planned.”

Sunday Leader on January 8, 2010 reported the statement of Gotabaya as follows.
“Gota ordered troops under his command to “kill them all’ when the troops on the ground asked him for direction for handling the surrendering Tamil combatants”.

After his return from China on May 17, 2009 Sarath Fonseka stated, “I led the operation until the victory on the 19^th of May 2009.”

On the basis of above facts and admission of command responsibility for the entire war operations, Sarath Fonseka and Jagath Jeyasuriya are liable for the war crimes committed by the soldiers under their command as an omission of command responsibility. Gotabaya assumes liability for issuing orders to Army commanders including illegal orders “to kill all” which falls as a policy command of State. So also liability falls on Mahinda Rajapaksha as the Supreme Commander of the Security Forces at times personally directing the operations.

Recent statement of President Sirisena “granting protection to all members of Army including Jagath Jeyasuriya” has closed the doors for any International Investigation against security forces. This position has also closed doors of co-operation with outside investigating bodies or courts which is in fact a slap on the concept of Universal Jurisdiction.

The duty therefore lies on International Organizations like Human Rights Groups including States who signed the Rome Statute to invoke the Universal Jurisdiction Clause as endorsed by Human Rights High Commissioner against anyone involved in the commission of war crimes in Sri Lanka.

Unless and until an independent and impartial investigation is initiated to bring to light the actions of all commanders by word and or conduct including the orders issued by the Defence Secretary and President, accusing each other or passing the blame on others will not go to absolve the war commanders from command responsibility.

Liabilities of the commanders involve the following crimes of omissions and commissions.
[i] Actual or constructive knowledge of the crimes committed by the subordinates

[ii] Failure to prevent the commission of crimes which they ought to have known. [about to be committed or likely to be committed]

[iii] Failure to supervise the subordinates and failure to punish the perpetrators.

[iv] Issuing illegal orders to commit war crimes [like killing the surrendered and detainees]

Source: –
International Crimes Evidence Project February 2014 – Sydney Australia
Ceylon Daily News – Sri Lanka
Ceylon Today, 09/03/2017 – Sri Lanka
Daily Mirror, 09/01/2017– Sri Lanka
Sunday Leader – Sri Lanka

Tamil Diaspora’s continuing efforts is all the more important and crucial in this matter to pursue Universal Jurisdiction wherever possible.

FACTS GIVE RISE TO TRUTH AND IT NEVER FAILS.