Federal Attorney-General Robert McClelland has refused to allow a war crimes case against the Sri Lankan president to proceed in Australia.
Retired engineer Jegan Waran, 63, has filed charges in the Melbourne Magistrates Court against Mahinda Rajapaksa, claiming civilian targets were bombed in 2009 during Sri Lanka’s civil war.
The president has arrived in Perth for the Commonwealth Heads of Government Meeting (CHOGM).
Mr McClelland’s consent is needed for such cases to proceed. His office issued a statement saying he would be in breach of international laws which provide immunity to heads of diplomatic missions if he allowed the case to go ahead.
"Those immunities include personal inviolability including from any form of arrest or detention and immunity from the criminal jurisdiction of the receiving state," a spokesman for Mr McClelland said.
Thousands of civilians were killed in the three-decades-long civil war which came to an end when Sri Lankan forces defeated Tamil rebels in 2009.
Claims that Sri Lankan armed forces deliberately attacked civilians are not new, but this is the first time charges have been brought by an Australian citizen in an Australian court.
In 2007, Mr Waran, a Tamil man, returned to Sri Lanka from Australia to offer what assistance he could, volunteering in Tamil hospitals, schools and displaced persons camps.
It was here he says he witnessed Sri Lankan military forces deliberately attacking clearly marked civilian infrastructure such as hospitals.
"Patients were killed and patients who were in the hospital were killed, and there were other patients waiting for treatment, they were killed," Mr Waran said.
"There was a medical store where they kept the medicines; those were destroyed, scattered all over the place, you can see.
"Ambulances were destroyed. So I have seen that personally."
Photo: A government soldier (R) watches civilians flee during the 2009 fighting (David Gray, file photo: Reuters) Mr Waran says on Christmas Day 2008, drones circled another hospital before Sri Lankan air force planes attacked.
"The hospital, clearly a big Red Cross sign was marked on the roof, and drones usually take surveillance, so I’m very positive that they know where the hospital is and they know it will be damaged," he said.
This and other incidents have led him to issue summonses for three war crimes charges against Sri Lanka’s president.
He says he wants to bring these charges against Mr Rajapaksa "because I feel that he’s the commander-in-chief and nothing would have happened without his knowledge or his directions, and ultimately, he should be answerable to what was happening".
Sri Lanka’s government has repeatedly denied allegations of war crimes.
Last week, the International Commission of Jurists suggested Sri Lanka’s high commissioner to Australia, Thisara Samarasinghe, who led the navy in the north of the country, be investigated for war crimes.
The Australian Federal Police is examining the allegations.
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