The father of Ragihar, one of the students killed, is one of the three plaintiffs who have filed a civil case against Sri Lanka’s President Rajapakse for Command Responsibility in the killings.
The relevant text contained in the memo follows: ¶6. (C) Speaking with surprising candor, Rajapaksa explained the GSL’s efforts to prove that members of the Security Task Force (STF) murdered five students in Trincomalee in January: “We know the STF did it, but the bullet and gun evidence shows that they did not. They must have separate guns when they want to kill some one. We need forensic experts. We know who did it, but we can’t proceed in prosecuting them.” Ambassador Blake tells Washington that Rajapakse’s “candid response…laid the foundation for a pragmatic relationship with the [US] embassy.”
Dr Manoharan says in his affidavit submitted to the District Court of District of Columbia as part of the complaint to the case against Rajapakse, that he “personally believe[s] that these murders were carried out by the STF [Special Task Force] under the supervision of Superintendent of Police [SP] Kapila Jayasekara.”
The STF team was sent to Trincomalee with the approval of Defence Secretary Gotabhaya Rajapakse just before Christmas 2005, and Sinhala extremist Kotagadeniya was acting as an advisor to the Defence Ministry in Police matters. “Judging by events there is hardly any doubt that the attack on the students in a public place was conceived as teaching the Tamils a lesson…If not the details, the general form of the atrocity was planned at the highest level,” the Rights organization UTHR concluded in its investigations. (UTHR, 1/2/10, pg. 14).
Article 28 of the Rome Statute which addresses “Command Responsibility,” states in part: (b) …a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: 1.The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
2.The crimes concerned activities that were within the effective responsibility and control of the superior; and
3.The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Even if the superiors, in this case, raise defense against intent or knowledge of the killings, not submitting the matter to the competing authorities for investigation and prosecution is a clear violation of Article 28(b)(iii), and Article 87 of the Additional Protocol I of Geneva Conventions, legal sources in Washington said.