The audacious visit to the United States by Major General Sarath Fonseka soon after an incriminating US State Department report over war crimes, appears to have landed the Major in a legal bind with US Department of Homeland Security (DHS), according to a report in the Sunday Times. While the DHS has requested a "voluntary meeting," Fonseka’s legal counsels are yet to determine if US has the authority to trump Fonseka’s assumed diplomatic immunity and can force him to testify, or if Fonseka’s immunity would grant him the option to refuse to testify and return to Sri Lanka.
"In either case, the US action to request meeting does not augur well for Mr Fonseka’s legal future in the US. Several law-suits are ready to be filed against Mr Fonseka by private plaintiffs based on existing US tort statutes if his sovereign immunity is found to be non-enforcable. When the General relinquishes his military office in Sri Lanka, he will shed the sovereign immunity, and will expose himself to legal action in the US," an official of Tamils Against Genocide (TAG), a US-pressure group that has filed a model indictment with the Justice Department against Fonseka and Gothabaya Rajapakse, and is working on gathering Satellite evidence on criminal culpability in Sri Lanka’s war crimes, told TamilNet.
Diplomatic immunity would be determined by Fonseka’s US visa, and in what capacity he is in US territory. If Fonseka had come to US on a diplomatic mission he is likely to claim diplomatic immunity. However, the reason for DHS to speak to him in Oklahoma may indicate that US is taking the safe approach to "interrogate him during his social visit to his daughter, so that the issue of diplomatic immunity will not arise," legal sources in Washington said.
Diplomatic immunity is a principle of international law originally codified in the Vienna Conventions of 1961 (Diplomatic Relations) and 1963 (Consular Relations), which establishes that certain foreign government officials are not subject to the jursidiction of local courts and other authorities for both their official and, to a large extent their personal activities.
This is codified in US law in the Diplomatic Relations Act – 22 U.S.C. 254.
Mr Fonseka’ current visit is to avoid termination of his lottery-won Green Card, according to several reports.
"It is not immediately clear whether Patton Boggs lawyers would advise Gen. Fonseka to claim diplomatic immunity and turn down the interview request or ask him to respond to questions from officials of the Department of Homeland Security. In fact, the involvement of the firm itself has become a knotty legal issue after it has been pointed out that it also represents the Government of Sri Lanka. Since Gen. Fonseka is a Green Card holder, and thus a prospective US citizen, there were concerns whether representation by Patton Boggs would also become another issue," Sunday Times said in its report.
"[Q]uestions are being raised [by the Sri Lanka embassy officials] whether the Department of Homeland Security would resort to Court action in the US to hold him for investigation for alleged human rights violations," the paper said.
PDF: US State Department Report
In Page 46, inside a chapter on killings of combatants seeking to surrender, the US State Department Report referred specifically to Maj. Gen. Fonseka and said, "July 10 – A media outlet reported on July 18 that at a celebratory event in Ambalangoda, Army Chief General Sarath Fonseka stated that the military had to overlook the traditional rules of war and even kill LTTE rebels who came to surrender carrying white flags during the war against the LTTE."
The US government had earlier withdrawn the invitation extended to Mr. Fonseka, currently holding the post of Chief of Defence Staff, during this visit to attend a farewell event to Commander Admiral Timothy J.Keating at PACOM headquarters in Hawaii. US authorities had said it would not be tenable for Gen. Fonseka to be officially hosted at any event after the allegations made in the State Department report.
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