One of the key members of the Sri Lankan army during the final stages of the civil war faces criminal investigation if he re-enters parts of Europe.

Jagath Dias, a senior office of the Gajaba Regiment, led the 57th offensive division, and is allegedly responsible for war crimes committed during the final phase of the civil war in 2009. These crimes include the deliberate bombing of religious buildings, the intentional shelling of hospitals and densely populated civilian areas, and the torture of LTTE commanders.

He served as the most senior general officer commanding in the last stages of the conflict. A few months after the war ended he was appointed Deputy Chief of Mission of the Sri Lankan Embassy in Berlin (on September 18 2009), accredited also to Switzerland and the Vatican.

A dossier by the European Centre for Constitutional and Human Rights, and submissions by two organisations, TRIAL and the Society for Threatened Peoples (SPM) prompted the Swiss Federal Prosecutor to announce the initiation of a formal criminal investigation against Dias if he returns to the country. Allegations of his complicity in crimes under international law during the Sri Lankan civil war are already under preliminary investigation in Germany.

Dias is one of a number of high-profile figures, who were intimately involved in the final stages of the Sri Lankan conflict and have since been promoted to diplomatic positions. Until his withdrawal as vice-ambassador, Dias enjoyed diplomatic immunity, which he had been granted with his diplomatic visa in Germany and Switzerland, protecting him from any criminal investigation or prosecution.

Dias was in charge of the 57 Division, composed of the 571, 572, 573 and 574 Brigades. The ECCHR’S damning report describes the case of Madhu, where the 57 Division was operating in April 2008, as a clear breach of international law by Dias.

In the area, a Christian church compound was systemically shelled by government forces, despite the presence of refugees seeking shelter within the church property. At the time, the Bishop of Mannar, Rev Rayappu Joseph said: “Shells are falling within the church premises several times and many of those staying there have been compelled to leave, while priests and the other church workers who are still remaining, live in fear and are being forced to seek shelter in bunkers.” Church officials described how the shelling only ceased for two hours from Wednesday to Thursday.

The Sri Lankan government responded by saying that the church was being used by members of the LTTE, but this was not verified by any independent source. Under Rule 40 of the Customary Humanitarian Law Study of the International Committee of the Red Cross (ICRC), all parties to a conflict have to respect religious institutions, and this rule applies in non-international armed conflicts. Even if rebels were present on the church ground, the government would not have been allowed to shell the church under international law.

The ECCHR report goes on to discuss the 57 Division’s operation in Kilinochchi, captured on January 2 2009. The capture of the area took place at the expense of the shelling of the General Hospital in Kilinochchi on December 22, December 25 and December 30, causing damage to the newborn nursing section, outpatient department and the reception.

The location of Kilinochchi Hospital was widely known and the intentional shelling of the hospital shows a common pattern of war crimes committed in Kilinochchi and in other areas towards Mullaitivu, during the last phase of the conflict. Rule 30 of ICRC Customary Humanitarian Law Study prohibits intentional attacks against medical personnel and objects, making Dias responsible for committing a war crime. The report also states that Dias was reponsible was the indiscriminate shelling of densely populated areas, killing civilians in the area between Kilinochchi and Ramanathpuram in early January 2009. According to websites, the 57 Division was also present in Puthukkudiyiruppu, an area notorious for the shelling of the Puthukkudiyiruppu hospital in February 2009.

The report concludes by stating that Dias was responsible for numerous war crimes with his units. It makes recommendations to the German and Swiss Government: revoking Dias’ diplomatic visa, declaring him a ‘persona non grata’, the most serious form of censure which a country can apply to foreign diplomats, and initiating criminal investigations.

The initial granting of diplomatic visas to alleged war criminals such as Dias, by many countries which voiced concern over Sri Lanka’s humans rights record, shows hypocrisy and a neglect of the plight of up to 40,000 civilians who were killed in the conflict. By granting Dias a diplomatic passport, the German Government breached international law and obligations outlined in the Geneva Conventions and its Additional Protocols.

Now that the Swiss and German governments have realised their obligation to human rights, the Jagath Dias case raises the hope that other countries will also tighten up their controls on war criminals-turned diplomats, who are evading the war crime prosecutions, and are effectively being given freedom to travel, with protection from having to answer for their crimes, by being granted diplomatic immunity. After the end of the conflict in 2009, the Sri Lankan Government sent Major General Shavendra Silva to the permanent mission to the UN in New York, Major General Prasanna Silva to London, Major General Udaya Perea to Malaysia, Major General Nanda Mallawarachchi to Indonesia and Major General Amal Karunasekara to Eritrea.

The recent decision by Germany and Switzerland is unlikely to lead to a criminal investigation, since Dias has stated that he is unlikely to return to those countries either as a diplomat or as a private individual. However, it does provide some hope that international law will be enforced on him and other military figures accused of war crimes who have hidden behind the cloak of diplomatic immunity.