The government of Sri Lanka has announced that it intends to send its next high commissioner, Air Marshal Sumangala Dias, to Canada. Yet there is compelling evidence that Dias is criminally responsible for massive violations of international human rights, including the mass killing of innocents.
If Dias were to show up in Canada as a private individual, one could argue he would be prosecutable under this country’s Crimes Against Humanity and War Crimes Act. However, as high commissioner, he would be immune from prosecution. The Canadian government should refuse to accept Dias as high commissioner, which it has every right to do.
In the later years of the Sri Lankan civil war, which lasted from 1983 to 2009, Dias had significant responsibilities. In 2005, he was appointed base commander of Sri Lanka Air Force Base Hingurakgoda. According to a 2015 report by the United Nations Human Rights Office, in April 2006, the Sri Lankan air force engaged in air strikes near a civilian population in the Sampur area. Hingurakgoda base is the closest air-force base to Sampur.
In 2008, Dias was appointed senior air coordinator of the Sri Lankan air force. After his appointment, in 2008 and 2009, it attacked civilian populations, including the shelling of several hospitals, UN facilities, and civilian areas specifically designated no-fire zones. The latter occurred after the Sri Lankan government encouraged civilians — including by dropping leaflets from aircraft — to move into the zones.
In 2009, air strikes targeted food-distribution queues, killing many, including women and children. The UN Human Rights Office found that the air force “(was) systematically informed of the location and time of food distributions,” providing “reasonable grounds to believe that (the food-distribution queues) were deliberately targeted.” There is substantial evidence that the air force used cluster-bomb munitions and white phosphorous against civilians and civilian targets, including in the no-fire zones. The final phase of the civil war was catastrophic in terms of civilian casualties, with several credible sources estimating as many as 40,000 civilians died.
Under the international and Canadian law of command responsibility, a military commander is responsible for international crimes committed by his or her subordinates, in a variety of circumstances. One is that he or she knew, or should have known, that the subordinates were committing, or about to commit, the crimes, and the commander failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission. Another is that the commander afterward failed to submit the crimes for investigation and prosecution.
Dias knew, or should have known, what the air force was doing when he was its senior air coordinator. The evidence is that he failed to take action to prevent and repress its abuses in 2008 and 2009. There is further evidence that he did nothing after the fact to submit the matters for investigation and prosecution.
This is not the first time the Sri Lankan government has appointed as head of a foreign mission a person with a history of apparent responsibility for mass violations of international human rights. In 2015, Sri Lankan Gen. Jagath Jayasuriya was appointed ambassador to Brazil, with responsibility also for Colombia, Peru, Chile, Argentina, and Suriname. In August 2017, once he had assumed his posting, a coalition of human rights groups filed a war-crimes lawsuit against him in Brazil. The groups urged the expulsion of Jayasuriya from his diplomatic post so the case could proceed. Jayasuriya returned to Sri Lanka before a decision was made.
Canada should not allow diplomatic postings to be safe havens for people against whom there is compelling evidence of genocide, war crimes, or crimes against humanity. Canada should tell the government of Sri Lanka that Dias is unwelcome here as its high commissioner.
Sarah Teich is an international human rights lawyer and a senior fellow at the Macdonald Laurier Institute. David Matas is an international human rights lawyer based in Winnipeg. This article is drawn from a legal opinion by the authors for the Tamil Rights Group.
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