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TAG, SCET’s legal brief asserts ICC obligated to probe Kohona on war-crimes

[TamilNet, Sunday, 13 February 2011 11:02 One Comment]

PalithaKohona02Front Tamils Against Genocide (TAG), a US-based activist group, and Swiss Council of Eelam Tamils (SCET) said Sunday that both organizations are to jointly file a legal brief requesting the Prosecutor at the International Criminal Court (ICC) in the Hague, Netherlands, to initiate war crimes investigations leading to the issuance of an article 58 warrant of arrest of dual Australian-Sri lanka National Palitha Kohona. The legal complaint charges joint criminal enterprise liability on Kohona over the extra-judicial killings of three LTTE hors de combat surrendering by waving a white-flag to the Sri Lanka Army on or about May 18 2009. Mr Kohona is currently the Ambassador of the Permanent Mission of Sri Lanka to the United Nations.

The legal documents are expected to be delivered to the office of the ICC prosecutor, Moreno O’Campo, by Wednesday, according the SCET official organizing the document package.

According to the team working on the legal brief, TAG/SCET argue that the participation of Australian national Palitha Kohona in the extended joint criminal enterprise is sufficient to legally construe the post-surrender extra-judicial killing of three LTTE hors de combat, Nadesan, Pulidevan and Naresh, by the SLA as an Australian situation, in whole or in part, which falls within the jurisdiction of the Court pursuant to Article 12(2)(b) jurisdiction ratione personae.

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While attaching culpability on Kohona for his alleged criminal actions during the negotiation phase, the legal brief also points to the substantial alleged participation in this extended joint criminal enterprise during the execution phase, and hence the criminal culpability, of Ex-Major General of the SLA’s 58th division, Shavendra Silva, who is currently Sri Lanka’s Deputy Representative to the UN.

Lathan Suntharalingam, a student political activist working with SCET said, "What unfolds at present in Sri Lanka is a post-conflict development without justice model, similar to Black July or the catalog of Tamil massacres which followed. Tamil justice and the enforcement of fundamental Tamil civil liberties, inside and outside of Sri Lanka, are essential components to rehabilitate and rebuild post-genocide Tamil society. We believe that the revolutions and state formation in Egypt, Tunisia, and South Sudan indicate changes in the international climate which may bear favorably on our struggle for justice. In seeking justice, SCET is committed to pursuing litigation against all alleged war-criminals from Sri Lanka."

On the legal context to the impending submittal to the ICC, Rajeev Sreetharan, a US law student and member of TAG, said, "Strategic litigation approaches grounded in universal criminal jurisdiction make it possible to circumvent Sri Lankan cultures of impunity and obstructionism which have obviated the prospect of Tamil justice in Sri Lankan courts since the disenfranchisement of Tamils of Indian origin after independence. The ICC submission, predicated on a jurisdictional workaround to Sri Lanka’s non-signatory status to the Rome Statute, has two salient implications. First, as a matter of law, the ICC does have jurisdiction over a class of war crimes committed during the last leg of the war by dual nationals in the government and military. Second, the Court can no longer justify its inaction by asserting lack of jurisdiction or absence of UN Security Council referral. It has jurisdiction, and under Article 15, it does not need the latter."

Meanwhile, Kohona is to address a scheduled event at the Harvard University conducted by the Humanitarian Law & Policy Forum on "Accountability for Violations of IHL in Counterinsurgency: The Case of Sri Lanka." Amnesty’s Sam Zarifi, International Crisis Group’s Alan Keenan, and Jon Lee Anderson from New Yorker magazine are the other panelists on the Harvard discussion.

Commenting on this event, a TAG spokesperson said, "We would want to alert the event organizers and panelists of the irony that an alleged war-criminal is being invited to address the issue of accountability in International Humanitarian Law violations."

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