Canada can find the war crimes that Australia can't

AFP's once-over-lightly investigation of the Sri Lankan High Commissioner to Australia ... Findings in Canada that Sri Lankan navy was involved in crimes against humanity ... We turn a blind eye because there's an expectation the Sri Lankan navy assists in preventing asylum seekers from reaching Australia 

Thisara Samarasinghe: Sri Lankan High Commissioner to Australia

AUSTRALIA has been under pressure to withdraw the accreditation granted to the Sri Lankan High Commissioner in Canberra, Thisara Samarasinghe.

Samarasinghe is a former Admiral and Chief of Staff of the Sri Lankan Navy. He was promoted to that position during the civil war which ended in May 2009.

Samarasinghe served in the navy for 37 years, and for most of that time held a high ranking position overseeing military strategy. 

The International Commission for Jurists lodged a complaint with the Australian Federal Police alleging that Samarasinghe's involvement with the navy throughout the civil war rendered him complicit in crimes against humanity and war crimes.

The AFP confirms that it has evaluated the ICJA's submission and decided to discontinue the investigation.

However, this decision by the AFP appears to be premature in view of a recent Canadian Federal Court finding that rejected the refugee application of a former member of the Sri Lankan navy on the ground that he was complicit in war crimes.

Facts of the case 

The case of Kuruparan v Minister of Citizenship and Immigration involved the judicial review of a decision by the Immigration and Refugee Board to refuse the applicant and his family refugee status or protection in Canada.

The applicant was of Tamil ethnicity and had voluntarily joined the Sri Lankan navy in 1985. While the applicant did not directly participate in combat, he was eventually appointed to the command position of commodore.

Kuruparan continued his post throughout the civil war until 2009, when he fled with his family and sought asylum in Canada. 

The board's decision

The Sri Lankan navy was found to be an organisation that had "regularly and systematically" carried out human rights abuses against the Liberation Tigers of Tamil Eelam (LTTTE) as well as Tamil civilians and sympathisers.

The board ruled that, as the applicant was a former commodore who had participated in and had knowledge of the navy's commission of crimes against humanity and war crimes, he was excluded from refugee protection in accordance with article 1F(a) of the United Nations Refugee Convention.

The applicant's long service and rank, coupled with his knowledge of the atrocities being committed and his failure to leave at the earliest opportunity were all factors the board considered in relation to its finding of complicity.

Further, the board found that due to the applicant's good standing and clean records, his fear of persecution due to his Tamil ethnicity was subjective and not plausible.

Kuruparan sought judicial review of the board's decision and the case came before the Canadian Federal Court. 

The court's analysis

The court determined that the board had not erred in its determination that the navy as a whole committed crimes against humanity.

Evidence demonstrated that the navy either acted alone or in conjunction with government forces, over various locations.

It was therefore not necessary to link the applicant to a particular unit, as the objective evidence sourced from the UN and the Asian Human Rights Commission was highly credible.

The court also found that the institutionalisation of torture coupled with the widespread disappearances of the Tamil population was enough evidence to support a conclusion that the navy as a whole was guilty of crimes against humanity.

Further, the court followed an earlier decision of Ezokala in concluding that "knowingly contributing to these activities in any manner whatsoever" is enough to constitute an individual an accomplice.

Implications of Kuruparan for Australia

The applicant in Kuruparan had served for 24 years, in a much lower position than High Commissioner Samarasinghe, and had not overseen any military attacks in that time.

It is difficult not to draw similar inferences of involvement in the case of the High Commissioner.

The AFP decision to drop the investigation into Samarasinghe was not soundly based. 

Australia is a party to the United Nations Refugee Convention and is obliged to ensure that people who fall within the UN definition of "refugee" are provided with asylum.

Further, if there is a real risk of the applicant facing particular human rights violations, even if the UN refugee criteria are not met, Australia still has obligations not to return the applicant to their country of origin.

Despite this and contrary to advice from the UN Human Rights Commissioner, Australia recently deported Dayan Anthony - the first Tamil asylum seeker to be returned to Sri Lanka since the end of the civil war.

Anthony was taken from the plane on which he returned directly to Colombo police headquarters. He did not appear again for 16 hours.

Despite the findings in Kuruparan, Australia's policy is to treat the Sri Lankan government and the navy, in which Kuruparan and Samarasinghe both served, as one of its chief allies in preventing asylum seekers from reaching Australia's shores. 

By doing so, Australia rejects the same evidence that the Canadian tribunals found so influential.

In deporting Dayan Anthony, Australia also ignores the available evidence that human rights abuses in Sri Lanka are still both regular and frequent. 

Respected commentator Bruce Haigh points to international precedent, including Australia's previous rejection of an Indonesian diplomat with a dubious military background, and makes the case that Samarasinghe's credentialing should be withdrawn.

Dayan Anthony emerged from Colombo police detention to appear in a press conference recanting his allegations of torture by Sri Lankan authorities in a manner reminiscent of the confessions produced in the Moscow show trials of the 1930s.

The irony may be that the Sri Lankan navy and government appear to have decided that it is in their interest to organise the asylum seeker boats and gouge a profit rather than stop the boats from leaving. 

Stephen Keim and Jordan Sosnowski* 

*Jordan Sosnowki is in her final year studying a Master of Laws, Juris Doctor, at Monash University. She received a Bachelor of Arts from the University of Queensland, majoring in philosophy and English literature. Jordan is passionate about animal welfare, environmental protection and human rights issues. She currently works as a legal research officer and hopes to eventually specialise in the field of animal law.