By Gideon Boas | The Sydney Morning Herald
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Palitha Kohona, a dual citizen of Australia and Sri Lanka, has been accused of assisting in organising the alleged murders of three surrendering Tamil Tigers in 2009. In January, two Tamil organisations operating outside Sri Lanka — the Swiss Council of Eelam Tamils and a US group called Tamils Against Genocide — submitted a request to investigate Kohona for the murder of three surrendering Tamil Tigers to the prosecutor of the International Criminal Court. Kohuna is said to have been prominent in negotiating the surrender of the victims while serving in the Sri Lankan government, but has denied any involvement in the alleged event. He is now Sri Lanka's ambassador to the United Nations.
Kohona is not just an Australian citizen; he was also employed, according to Hansard, as a senior official with the Department of Foreign Affairs and Trade. The allegations of his involvement in war crimes, therefore, come as an added embarrassment to the Australian government.
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Looking at the submission from the Tamil groups to the ICC prosecutor, the factual case itself has problems and complexities. Areas untested before the ICC relating to certain kinds of criminal participation raise question marks, even were the prosecutor prepared to investigate and seek Kohona's prosecution.
However, substantive legal matters aside, the prosecutor is highly unlikely to investigate a case in which three surrendering combatants were believed to have been killed. The prosecutor's office receives many such submissions and requests, only a fraction of which can, and will, ever be investigated — even fewer will be prosecuted. This is because of its policy of prosecuting only the gravest of crimes, and only then when other limiting factors are satisfied.
Which brings consideration of this case back to Australia and the interest — if any — of Australian authorities in either prosecuting or facilitating the prosecution of Kohona for war crimes.
Sri Lanka is not a party to the statute of the ICC and the court has no jurisdiction over its citizens or crimes committed on its territory, unless the United Nations Security Council authorises it. One exception to this limitation is where a perpetrator is a citizen of a country that has ratified the court's statute. The Tamil groups' submission to the ICC states that Australia, as a signatory to the court's statute, has an obligation to assist such an investigation.
Australia is indeed obliged either to prosecute or extradite to the ICC a person who falls under the court's jurisdiction. So far the only response from the government is a general statement that it will support any action by the court. There is no suggestion that the government might itself consider seeking the extradition of Kohona back to Australia for investigation or prosecution here — either under the Commonwealth criminal code or the Geneva Conventions Act.
This is understandable for several reasons. For a start, the facts in relation to Kohona's involvement are vague, there is only, at this stage, the suggestion of an anonymous witness who can put him in the picture and, as a serving ambassador of Sri Lanka, he may be entitled to diplomatic immunity (although where war crimes are concerned, and because he is an ambassador and not a minister, this argument is challengeable).
But beyond that, since the trials of three accused Nazi war criminals living in Australia in the late 1980s and early 1990s Australia has been reluctant to engage in investigating and prosecuting alleged war criminals even where they reside under our noses — let alone where we would have to seek their extradition in such a challenging legal and political environment.
Take the recent case of Dragan Vasiljkovic, the Australian Croatian Serb finally sent to Croatia to face war crimes prosecution only after the High Court ordered his extradition (and after Australian Federal Police managed to recover him from hiding in New South Wales). There was a strong case for us prosecuting Vasiljkovic, an Australian citizen, under the Geneva Conventions Act, but this appears never to have been seriously considered.
In other cases, we have been prepared to facilitate extradition but never to prosecute ourselves. While our legislative framework certainly renders some of these cases complex, the reluctance goes far beyond purely legal considerations. We have a great anxiety about the resources involved in such prosecutions and an even greater anxiety that the Australian public does not really support prosecuting people who committed crimes — even war crimes — in other countries.
While Kohona's case is far from a great example of our reticence in this area, it highlights just how far we are as a country from taking our place as good international citizens; from talking seriously about what to do about alleged war criminals residing within our community, and from having an evolved policy on how to deal with them.
Dr Gideon Boas is an associate professor in the Monash University Law School and was a senior legal officer at the International Criminal Tribunal for the former Yugoslavia.
© The Sydney Morning Herald
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