Could President Rajapaksa be arrested if and when he arrives in Britain?

By Lasanda Kurukulasuriya

The External Affairs ministry has just issued a statement (Fri. Nov 5) indicating that President Mahinda Rajapaksa’s visit to London, in response to an invitation to address the Oxford Union, has been postponed “to a more suitable time” on account of a busy schedule that included much recent travel, and his upcoming 2nd term-inauguration ceremony.

This followed recent media reports that said the visit had been “cancelled” owing to fears of arrest in London for war crimes. External Affairs Secretary Romesh Jayasinghe indicating the visit will take place somewhere in December said the postponement had “absolutely no connection with anything that was happening in the UK” and was “solely due to the logistics of balancing foreign commitments with domestic commitments.”

The Independent (UK) for example reported yesterday (Sat. Nov 6) that “The president of Sri Lanka has called off a visit to Britain after exiled Tamil groups announced that they would attempt to have him arrested over alleged war crimes.” In Sri Lanka lawyers tend to rubbish claims that an arrest is possible or even likely, citing the “sovereign immunity” enjoyed by heads of state.

The source of the concern about a possible arrest over war crimes is Britain’s “universal jurisdiction” legislation which allows their courts to prosecute visiting foreign politicians over allegations of war crimes. It appears that such a warrant may be issued to any individual seeking one, regardless of whether a prosecution is likely to follow or whether the allegations are flimsy or of mischievous origin.

The sudden rash of speculation relating to UK’s “universal jurisdiction” legislation and possible reasons for Rajapaksa postponing his visit are very likely linked to recent international developments.

A few days ago Britain’s Foreign Secretary William Hague on an official visit to Israel was faced with an unprecedented setback when the Israeli Foreign Ministry announced it had postponed annual “strategic talks” with UK on defence and security related matters. The move was in protest over the universal jurisdiction law.

Tzipi Livni, who was Israel’s Foreign Minister during the 2009 military action in Gaza, cancelled a trip in December last year after a London court issued a warrant for her arrest under this law. The diplomatic spat that ensued had then Labour Prime Minister Gordon Brown pledging to have the law amended. Hague, who was shadow foreign secretary at the time, is reported to have concluded that the incident was “a disgrace.” The warrant was later revoked. In the latest incident, Israel’s intelligence minister Dan Meridor is reported earlier this week to have cancelled a trip to Britain out of similar concerns over possible arrest.

Hague’s three day official visit – his first since he took office in May as Foreign Secretary - has been overshadowed by these developments, with the Israelis reportedly putting the “universal jurisdiction” issue on top of their agenda. Hague said “Britain was urgently addressing the issue of amending the laws,” the BBC reported. But a spokeswoman for Britain's embassy in Tel Aviv was quoted by AFP as saying that it would take "several months" before any amendment was passed.

The presence of a large Tamil Diaspora with pro-LTTE sections in Britain is well known. During the latter stages of the war that put an end to LTTE terrorism in Sri Lanka, they turned out on the streets of London to stage massive anti-Sri Lanka demonstrations, misleading the British public with allegations of “genocide” etc.

In the wake of the recent incidents relating to Israeli officials, and the publicity that followed, there would seem to be a strong likelihood that these groups would try to embarrass the Sri Lankan government by seeking a warrant to arrest Rajapaksa for alleged war crimes, during his visit.

The proposed amendment to the universal jurisdiction law would require the consent of the Director of Public Prosecutions before such a warrant is issued. In effect it would mean that such warrants would not be issued against “official friends” of the UK.

The European Journal of International Law blogspot explains the proposed change as follows: (quote)

Although, prosecutions under these laws require the consent of the Attorney General, private persons may apply for an arrest warrant without consent. Furthermore, the standard for obtaining an arrest warrant is lower than would be required for a prosecution.

There have been a number of occasions in which private persons in the UK have been able to obtain arrest warrants against visiting foreign officials (or former officials). The most recent high profile case was the warrant obtained for the arrest of Israel’s former foreign minister Tzipi Livni … just before she visited Britain last year.

The problem with these cases is that you get arrest warrants in cases where prosecutions are most unlikely. So these are attempts merely to embarrass the foreign officials which also end up embarrassing the UK government. Following protests by Israel, the former British government proposed changes to the law which would have forbidden the initiation of private prosecutions for universal jurisdiction offences. (unquote)

Israel may be a strategically important partner to the UK, but the same cannot be said of Sri Lanka. British authorities may take pains to ensure no Israeli official will be embarrassed by these laws, now or in the future. But with the prevailing lack of clarity on the matter, questions remain as to how Britain’s prevailing laws and the proposed changes will pan out with respect to Sri Lanka.

Even if the President enjoys immunity, other government officials who may travel to UK do not. There will always be a steady supply of unverified and unverifiable allegations of war crimes emanating from the pro-LTTE lobby, in parts of the western world that host the Tamil Diaspora.

It is interesting to speculate whether, with the recent Wikileaks bombshell disclosures on Iraq (and earlier ‘Afghan war logs’) Britain’s own NATO allies will find their officials being slapped with arrest warrants under the prevailing universal jurisdiction law, if and when they visit the UK.

Unlike the anti-Sri Lanka propaganda of dubious origin, the hundreds of thousands of documents that make up the Wikileaks disclosures are said to be actual logs by US soldiers on the ground in Iraq and Afghanistan. The disclosures have been denounced by the Pentagon, but not denied.

COURTESY:SUNDAY TIMES