Sri Lanka’s President, Mahinda Rajapakse, purportedly on a private visit to the U.S. is likely to remain in hiding with his physical whereabouts kept secret from the public to to avoid another embarrassing battle with diaspora Tamils. While, as a matter of jurisprudential fairness, US Ambassador Butenis’s acknowledgment that Rajapaksas have committed possible war-crimes in Sri Lanka should trigger a Justice Department investigation, Rajapakse would not have attempted to enter U.S. absent assurance from the State Department that he will not be subjected to any legal procedures. Rajapakse will also be aware that, unlike in the UK, in the US private citizens cannot apply for an arrest warrant.
pdf: Arrest warrants – Universal Jurisdiction
In Britain any private individual to bring what is called a ‘private prosecution’ by applying to a magistrate. Normally the application would be for a summons to the defendant to attend court, but there is the alternative of issuing an arrest warrant if the offence is serious, or if the suspect might not answer to a summons.
In December suspect Sri Lankan war criminal, Major General Chagi Gallage who came as part of Mahinda Rajapaksa’s entourage to London, escaped arrest by his premature departure from Britain. "An application [for arrest warrant] was lodged at Horseferry Road magistrates court, central London, but inquiries by Scotland Yard established that Rajapakse contingent had made a hurried exit.
Alien Tort Claims Act (ATCA) in the US 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. Private citizens in the US can file a civil claim against Rajapakses. Legal battle will detemine if head of state immunity will apply to senior Rajapakse. Ex-Army commanders and non-Head of State defendents will not be immune from ATCA charges.
Rajapakse’s predicament in the US, and earlier in the UK, highlights what future holds for the politicians who held positions of "command responsibility" in Sri Lanka during the Vanni massacre in the first five months of 2009 and the Military Commanders on the ground who obeyed the orders.
In Western liberal democracies the freedom of movement of suspect war-criminals will be severely restricted due to diaspora and local political pressure, and visits will likely be clandestine without the glare of publicity.
The situation is unlikely to change, and the alleged criminals have to always find ways to avoid getting caught in foreign legal nets, unless an internationally acceptable independent investigation that establishes accountability for the massive Tamil civilian deaths is carried out.
pdf: From Pinochet to Rumsfeld: Universal Jurisdiction
While a coherent international justice system to prosecute war-criminals and genocidaires is not in place, justice systems that have universal jurisdiction provide varied possibilities to prosecute war-criminals in different European democracies:
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Source: Kleck, Michigan Journal of International Law
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