Fonseka's legal perils

As Major General Sarath Fonseka's military and political stars in Sri Lanka show signs of decline, the General may have to soon decide whether to stay in Sri Lanka and suffer ignominy under the Rajapakse brothers, or to use the lottery-won US Green Card, and seek safety with his children in the US. But safety in US may spell judicial danger.

Without the cover of sovereign immunity, which had protected Fonseka's alleged war-crimes until now, the General will be exposed to answer charges, in the US Federal Courts, against his conduct of war in Sri Lanka's north.

Both criminal and civil actions against Maj.Gen. Fonseka are likely in the US, and Colombo's resources, including legal help from US lobby-firms under Sri Lanka's payroll, will unlikely be available to him, legal sources in Washington said.

"Slow decline of Fonseka's stature in Sri Lanka is quite clear to the public, and many are bewildered at the treatment given to the General, especially after his contributions to the military victory against a formidable foe," a political analyst in Colombo told TamilNet.

Confusion prevails "whether former Army Commander Sarath Fonseka had accepted his new appointment as Secretary to the Ministry of Sports," adding, "even Sports Minister Gamini Lokuge expressing his lack of knowledge on the issue," Sunday Leader said today.

"Fonseka is reported to have told close confidantes that he will not accept any position which was likely to be an insult to his stature. He had said it was better that he leaves the country in dignity rather than accept positions which discredit his standing," the paper further said.

On July 14th Maj. Gen. Fonseka was moved from Commander of the Army, to the largely ceremonial post of Chief of Defence Staff (CDS).

Meanwhile, here in the US, Attorney General and his prosecutorial staff possess enviable discretionary powers in criminally prosecuting foreign defendants in the U.S. However, Tamils Against Genocide (TAG), a Washington D.C based pressure group, said the model indictment against Gotabaya Rajapakse and Sarath Fonseka, TAG submitted to the Justice Department in January, is under review.

"If and when the U.S. foreign policy interests converge to bring prosecution against Sri Lanka officials responsible for the alleged war-crimes, the Justice Department will begin a grand jury investigation," TAG officials said.

According to TAG, possible crimes Maj.Gen. Fonseka will be charged under a criminal indictment are likely to be:

·        Charge of genocide, as recognized by Article 2(a), (b), and (c) of the 1949 Geneva Convention, punishable under subsection (a)(1), (a)(2), and (a)(4) of section 1091 of title 18, United States Code.

·        Charge of torture, a violation of the laws or customs of war, as recognized by Common Article 3(1)(a) of the Geneva Conventions of 1949, punishable under subsection (d)(1)(A) of section 2441 of title 18, United States Code, punishable under subsection (a) of section 2340A of title 18, United States Code.

·        Charge of murder, a violation of the laws or customs of war, as recognized by Common Article 3(1)(a) of the Geneva Conventions of 1949, and punishable under subsection (d)(1)(D) of section 2441 of title 18, United States Code.

TAG officials pointed out that while the existing indictment document covered the crimes until January 2009, crimes allegedly committed between February and May 18th 2009 will also be added as a superseding indictment.

Evidence collection based on Satellite-imagery, and independent verification of the Channel-4 broadcast extra-judicial execution video, will further add to the evidence pool for indictment, TAG officials said.

For civil charges the situation is different, as individual victims, whether a US citizen or not, can use the US Federal court to file compensation for compensatory and punitive damages, according to TAG.

"US Courts can exercise jurisdiction for the crime of torture, war-crimes, and crimes against humanity for tort action. TVPA (Torture Victims Protection Act) applies only to U.S Citizens committing crime outside the U.S, and therefore, this act will only apply to defendants such as Gotabaya Rajapakse.

"Being a resident-alien without the cover of sovereign immunity, Maj.Gen. Fonseka's crimes can be prosecuted under the ATCA (Alien Tort Claims Act) for which there are illuminating precedents in US Courts," TAG official added.

ATCA 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.

With the international climate turning against Colombo in its disregard for human rights of the more than 280,000 Tamils civilians incarcerated in military supervised internment camps, rights organizations are urging the international community to take stern action against Rajapakse Government.

"With evidence of alleged war-crimes slowly seeping past Colombo's harshly imposed blackout, many former officials stand exposed to prosecution in countries where courts exercise universal jurisdiction for war-crimes," TAG officials said.