Universal jurisdiction: Manohara asks whether US visa refusal aimed at Gotabaya’s arrest

By Shamindra Ferdinando

Manohara de Silva, PC, says the rejection by the US of a visa application by Gotabaya Rajapaksa towards the tail end of the latter’s presidential term may allow Western powers to arrest him in terms of the Geneva Resolution.

The President’s Counsel emphasised that the Geneva Resolution authorised universal jurisdiction by accepting the report of the UN High Commissioner for Human Rights on Sri Lanka.  The High Commissioner conducted that investigation, in terms of the Geneva Resolution (A/HRC/25/1), adopted in Match 2014.

Sri Lanka co-sponsored Geneva Resolution on Oct 01, 2015, brought in by the US. The UNHRC consists of 47 countries, divided into five zones.Responding to The Island queries, de Silva said the possibility of Western powers moving against the wartime Defence Secretary couldn’t be ruled out, especially against the backdrop of declaration in the House of Commons that the ex-President should be arrested.

Sir Ed Davey, leader of the Liberal Democrats, last week told the House of Commons that an international arrest warrant should be issued in respect of Gotabaya Rajapaksa and his cronies.Scottish National Party MP Alyn Smith told the House of Commons that though the President had fled Sri Lanka, he couldn’t flee accountability. Smith asked the UK Minister for Asia and the Middle East, Amanda Milling, whether she agreed that the President, and those officials who had been complicit in acts of humanitarian abuses, would and must be held accountable, and would the UK contribute to those international efforts?”

Sri Lanka brought the war to a successful conclusion on the banks of the Nanthikadal lagoon on the morning of 19 May 2009.De Silva, who was a member of the expert team that prepared a new draft Constitution, said the US might have one if its allies carry out the arrest. President Rajapaksa left the country in an SLAF plane for the Maldives, less than 24 hours after protesters overran the President’s House, and from there flew to Singapore, from where he sent his letter of resignation, through the Sri Lankan mission in Singapore.

Rajapaksa relinquished his US citizenship ahead of the last presidential election, in Nov 2019. The 19th Amendment to the Constitution barred foreign passport holders from contesting either presidential or parliamentary polls.

India also categorically denied having any role in facilitating the departure, or travel, of former President Gotabaya Rajapaksa from Sri Lanka.De Silva said that whatever the political differences, the vast majority of people certainly didn’t want the West to prosecute political leaders, and the military, under any circumstances.

Responding to another query, the top lawyer said that actually political parties represented in Parliament and other stakeholders should explain their stand on the contentious issue at hand.Since Sri Lanka co-sponsored the Geneva Resolution, eight years ago, the US and Australia denied visas to several top officers, both serving and retired. Among them were Field Marshal Sarath Fonseka (US/retired), Maj. Gen. Udaya Perera (US/retired) and Maj. Gen. Chagie Gallage (Australia/serving).  The US also blacklisted General Shavendra Silva in Feb 2020.

De Silva said that Sri Lanka should, at least now, rethink its response to the Geneva threat. Those who had been in political authority, particularly since Nov 2019 till 09 July 2022, should be ashamed that Lord Naseby’s disclosures, pertaining to unsubstantiated war crimes accusations, were never properly used to counter lies propagated by interested parties, de Silva added.

SLPP lawmaker Rear Admiral Sarath Weerasekera said that the government should address the issue without delay. Western powers could exploit the ex-President predicament to humiliate Sri Lanka, experiencing a severe financial-political-social crisis, the former Public Security Minister told The Island.

The Colombo District MP said that the previous leadership neglected the accountability issue. The government’s failure to do so has now created an environment conducive for interested parties to go after top political and military leaders, Weerasekera said. Parliament, too, should look into this matter, the MP said, adding that current political imbroglio was not an excuse for abandoning the President.