War Heroes or criminals?

(Courtesy of The Island)

The former Navy Spokesman Commodore D.K.P.Dassanayake was arrested last week on charges of causing the disappearance of 11 persons in 2008. Dassanayake, a highly decorated Naval officer who played a major role in the war, is the latest high ranking armed forces officer to be arrested under the present government. After January 2015, a good cross section of the entire military high command that won the war against terrorism has either been investigated, questioned, arrested or remanded over some criminal investigation or the other. During the previous government, the then General Sarath Fonseka was arrested and jailed over two cases, one of which related to irregularities in Army procurements; the other being the white flag incident. The first case in which Fonseka was convicted by a military court was clearly a tit for tat political reprisal.

At the 2010 presidential elections, Fonseka pledged on every platform to put the Rajapaksas in jail and to make them wear ‘jumpers’. (‘jumper andanawa’ , ‘katu lewakanna denawa’). That venemous election campaign was one of the main reasons for Fonseka’s ignominious defeat. Tissa Attanayake the then general secretary of the UNP says in his memoirs that he had tried to caution Fonseka asking him at one point whether ‘such statements weren’t a bit too much?’ But Fonseka had brushed aside Attanayake’s concerns saying that was what brought ‘cheers’ from the crowds. It was only natural that if Fonseka contested that election to put his rivals in jail and make them wear jumpers, his opponents who emerged panting and palpitating but victorious from that election would repay him in the same coin.

Even though the procurements case against Fonseka was definitely politically motivated, one cannot say the same about the white flag case because the principle witness in that case was Frederica Jansz the editor of the Sunday Leader the newspaper which first published Fonseka’s comments on the white flag incident, Furthermore, the Sunday Leader and Jansz herself openly supported Fonseka’s candidacy. Fonseka got convicted in the white flag case under the provisions of the emergency regulations for uttering what he himself admitted were falsehoods, which had the potential to cause a breach of the peace. While his case stands out like a sore thumb during the previous government, under the present government there has not been one, but many such cases, involving many key figures that played a central role in the war against the LTTE. Is this just a coincidence – with almost everybody in the military set up actually being involved in theft and murder – or are these politically motivated reprisals like the Fonseka affair? A line up of the defence personnel who played significant roles in the war and who have been questioned, arrested, or charged for various crimes since the present government came into power would be as follows:

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Gotabaya Rajapaksa – Former Defence Secretary Questioned by the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption, the FCID, the CID and the Commission to Investigate Allegations of Bribery and Corruption. We have lost track of what he has been questioned about but they range from financial misappropriation to abduction to removing scrap iron from the abandoned KKS cement factory.

Wasantha Karannagoda  Commander the Navy during the war. Questioned by the CID over the disappearance of several youth in 2008 – 2009.

Kapila Hendawitharana, former Chief of National Intelligence questioned by the FCID over transactions relating to a Jaffna-based satellite television group.

Jagath Jayasuriya, former Army Commander (Vanni Commander during the war.) Questioned by the CID in relation to the disappearance of journalist Prageeth Ekneligoda.

Donald Perera, former Air Force Commander. Chief of Defence Staff during the war, questioned by the FCID regarding the 2006 MiG deal.

Roshan Goonetillake – the Air force Commander during the war, questioned by the FCID regarding the MiG deal.

Daya Ratnayake former Army Commander and a key figure in the Eastern theatre of the war questioned by the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption about the removal of scrap iron from the Kankesanturai Cement factory.

Jayanath Colombage – former Commander of the Navy charged by the FCID over the Avant Guard case.

Somatilleke Dissanayake – former Commander of the Navy charged over the Avant Guard case.

Jayantha Perera – former Commander of the Navy charged over the Avant Guard case.

Police DIG K. L. M. Sarathchandra arrested for the misappropriation of a vehicle.

Police DIG Anura Senanayake – over one year in remand for allegedly covering up Thajudeen’s alleged murder.

Apart from the top ranking personnel mentioned above, second tier military officers have also been either questioned, arrested, charged over various allegations and among them are the following: Major Gen. (Rtd) Mahinda Hathurusinghe former Security Forces Commander Jaffna questioned by the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption about the removal of scrap iron from the Kankesanturai Cement factory.

Major Gen. (Rtd) Udaya Perera  - the Director Operations of the Army  during the war, questioned by the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption about the removal of scrap iron from the Kankesanturai Cement factory.

The latest high ranking armed forces member to be arrested over a criminal allegation is Navy Commodore D.K.P.Dassanayake.

There are many other officers who have been either questioned or arrested and remanded particularly in the intelligence services examples of this being former Director of Military Intelligence Amal Karunasekera and Major Gen. Suresh Sally, also a former DMI. The intelligence divisions of the armed forces have taken the brunt of the present investigative fervour with many personnel ranging from senior officers right down to Corporals and soldiers spending varying periods in remand prison. Three Navy officers were arrested and tried for the assassination of parliamentarian Nadarajah Raviraj but all of them were acquitted by the High Court. All this comes in a situation where dangerous LTTE cadres who were deemed by the previous government to be impossible to rehabilitate, were released without trial by the present government.

In fact just last week, Ben Emmerson the UN Special Rapporteur on Counterterrorism and Human Rights in concluding his visit to Sri Lanka fulminated against the Prevention of Terrorism Act and wanted it abolished which means that all the present detainees under the PTA will be released automatically. The UN Special Rapporteur also said that he was given a personal assurance by the prime minister that (among other things) an office of a Special Prosecutor would be set up to bring criminal charges against those responsible for the most ‘serious atrocities’. He also stated that the chief of the army Mahesh Senanayake had given him a ‘public commitment’ that members of the armed forces who had committed crimes would be brought to justice. Given what Emmerson said in Sri Lanka, what we can expect in the coming months is a ratcheting up of criminal investigations against armed forces personnel.

This spate of investigations against armed forces personnel for various criminal activities like theft and abduction seems to be a softening up of the public for the big show. If Fonseka was jailed as retaliation for having promised to put his opponents in jail, for what reason is the present government investigating, questioning arresting or remanding so many armed forces personnel from the highest to the lowest ranks? None of these people threatened to put the leaders of the yahapalana government in jail. This seems to be motivated by a need to fulfil pledges given by this government to their real masters both within and outside this country.  Once the public sees former and serving members of the armed forces going in an unending procession to the CID, FCID, the Commission Against Bribery and Corruption and to the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption, that becomes a part of ordinary life and after people get used to it, it will be easier to bring the same personnel to other tribunals to answer to allegations of war crimes.

 GL decries govt.’s ‘blatant, despicable lies’

All this comes in the context where the government tried to take up for debate in parliament, a Bill to incorporate into the law of Sri Lanka, the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearances’ which was signed and ratified after the present government came into power. This Bill seeks to enable foreign countries to request the extradition of a Sri Lankan who is suspected, accused or convicted of having caused enforced disappearances in Sri Lanka. Under this law foreign countries would also be authorized to arrest and try Sri Lankans for disappearances that allegedly took place in Sri Lanka and even to hand over persons so arrested to an international criminal tribunal even if Sri Lanka does not come under the jurisdiction of that international tribunal.

Former President Mahinda Rajapaksa put out a statement earlier this month outlining the dangers of this proposed legislation and due to the public outcry that followed, the government was forced to withdraw the Bill. However, UNP and SLFP Ministers Mangala Samaraweera, Dayasiri Jayasekera and Vijayamuni Zoysa have been engaged in an attempt to justify this Bill saying that it will apply only to the future and not to the past which assertion has been furiously contested by Prof. G.L.Peiris. Quoting the proviso to Article 13(6) of the Constitution, he pointed out that even if a certain act was not an offence in terms of Sri Lankan law at the time of its commission, the trial and punishment of a person for any act which was criminal according to ‘the general principles of law recognized by the community of nations’ would be legal and therefore this Bill would apply to the past as well.

Prof. Peiris charged that this Bill was probably not even drafted here but sent from overseas – a charge that seems to ring true when listening to UN Special Rapporteur Ben Emmerson’s imperious threats and exhortations delivered last week. GLP scoffed at Minsiter Mahinda Samarasinghe’s statement that President Maithripala Sirisena had wanted the debate on this Bill postponed so that he could study it more carefully, pointing out that this Bill had been approved by the cabinet of which the President is a member, and in any case it had been gazetted months earlier and the President would have had all the time in the world to study it if he wanted to. Prof Peiris said that earlier the controversy was about whether foreign judges should be allowed to serve in a war crimes tribunal in Sri Lanka but that now the government seems to have changed their strategy and instead of bringing foreign judges here, they are trying through this proposed legislation to send our armed forces personnel overseas to be tried by interested foreign governments.

Ominously, he pointed out that this proposed legislation seeks to circumvent the safeguards in Sri Lanka’s Extradition Law No 8 of 1977. One of those protections was that no person can be extradited for an offence of a political nature. He stated that in terms of the Bill before parliament, that protection which is even enshrined in customary international law, is specifically taken away and furthermore, that through this proposed Bill, it becomes possible to send Sri lankans to the Hague through a foreign country.

He also pointed out that the United States, Britain, Australia and Canada, had not signed this Convention and that the Scandinavian countries which are usually at the forefront of any human rights initiative had signed it ten years ago in 2007, but never ratified it. GLP pointed out that even though India had signed it ten years ago, she too had never ratified it. Yet the Sri lankan government had signed and ratified this convention within a few months with no thought being given as to why even countries that lecture us on human rights had kept away from this international convention. He pointed out that the clear policy of the USA is that no foreign government is going to try an American soldier.

GLP charged that this latest Bill to incorporate into Sri Lankan law the provisions of the International Convention against Disappearances was aimed at fulfilling the pledges given by the present government in UN Human Rights Council resolution No: 30/1 of October 2015. He pointed out that the government effectively renewed their pledge to implement this resolution in full by asking for more time earlier this year and that the Bill under discussion is a part of that process of implementation. He said that Clause 23 of the proposed Bill enables the proposed law to supercede all other written laws in Sri Lanka giving it a status akin to the constitution. He said that the Joint Opposition does not want the debate on this Bill postponed. They want it withdrawn altogether.

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