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Rajapakse brothers, Brigadier Silva, presumptive war criminals, says Boyle

[TamilNet, Tuesday, 15 December 2009 09:19 No Comment]

Former Sri Lanka Army (SLA) Commander General Sarath Fonseka’s statement to the effect that the Rajapaksa Brothers, Gotabhaya Rajapakse and Basil Rajapakse, and Brigadier Shavendra Silva ordered the murder of surrendering LTTE leaders protected by a White Flag pursuant to a prior agreement to surrender that way sets forth a prima facie "war crime" under the customary international laws of war as codified into and exemplified by U.S. Army Field Manual 27-10 "The Law of Land Warfare" (1956), paragraph 504, said Professor Francis A. Boyle, University of Illinois College of Law, and an expert in International Law, in a note sent to TamilNet.

Boyle said, the prima facie war crimes culpability attaches for the following three reasons, at least :

    "504. Other Types of War Crimes In addition to the "grave breaches" of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war ("war crimes"):

    e. Abuse of or firing on the flag of truce.

    l. Killing without trial spies or other persons who have committed hostile acts.

    n. Violation of surrender terms."

Consequently the Rajapaksa Brothers and Brigadier Silva are presumptive war criminals. Every State in the world has both the right and the obligation to prosecute them should they leave Sri Lanka and enter into the territorial jurisdiction of another State, Boyle said.

Professor Boyle added, this War Crime also constituted a gross violation of Common Article 3 to the Four Geneva Conventions of 1949, to which Sri Lanka is a party and also constitutes customary international law:

    "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
    To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
    (a) violence to life and person, in particular murder of all kinds…
    ….
    (d) …the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Every State in the World is a Contracting Party to the Four Geneva Conventions of 1949. Therefore, every State in the World has both the right and the duty to prosecute the Rajapaksa Brothers and Brig. Silva for this War Crime, Professor Boyle asserted.

"Legally, they are likeunto Pirates–Hostes humani generis, the enemies of all humankind! The International Community has acted effectively to suppress and to punish Pirates coming from Somalia.

"That same International Community must now act effectively to suppress and to punish War Criminals coming from Sri Lanka," Boyle said.

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